Impartial Hearing Decision, No. 97367-20200204-remand

UNIVERSITY OF THE STATE OF NEW YORK STATE EDUCATION DEPARTMENT

In the Matter of the Impartial Hearing brought by REDACTED, on behalf of REDACTED,

Petitioners,

-against-

REDACTED SCHOOL DISTRICT,

Respondent.

INTRODUCTION

This matter comes before this Impartial Hearing Officer ["IHO"] on Remand, pursuant to the Decision of State Review Officer, Carol H. Hauge, dated July 19, 2017 [See Application of a Student with a Disability, Appeal No. 17-039] (Ex. IHO-22), for a determination on the merits of the Parent's claims for relief which were not quantitatively identified in the May 23, 2016 Due Process Complaint Notice (Ex. D-1) and the August 23, 2016 Due Process Complaint Notice (Ex. IHO-5), which the March 2017 IEP (Ex.

IHO-16) and a prior IHO's Decision on Motion to Dismiss (Ex. IHO-3) did not address [i.e., was there a denial of a free appropriate public education ("FAPE")] and, if so, what, if any, relief is warranted under the circumstances [See SRO Appeal No. 17-039 pp. 21-23].

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POSITIONS OF THE PARTIES

This hearing is held pursuant to Section 200.5U) of the Regulations of the New York State Commissioner of Education [8 N.Y.C.R.R. Section 200.5U)]. On May 23, 2016, Petitioner, REDACTED (hereinafter referred to as the "Parent"), requested an Impartial Hearing on behalf of her child, REDACTED (hereinafter referred to as the "Student"), received by the District on June 9, 2016, contesting the appropriateness of IEP and placement recommendations made by the District's Committee on REDACTED Special Education (hereinafter referred to as the "REDACTED") for the Student for the REDACTED and REDACTED school years. On August 18, 2016, the Parent requested an Impartial Hearing (received by the District on August 19, 2016) challenging the recommendations made by the District's Committee on Special Education (hereinafter referred to as the "REDACTED"), for the REDACTED school year. The Due Process Complaint Notices were consolidated by an Order of a prior Impartial Hearing Officer dated August 26, 2016 and corrected on December 17, 2016 (Ex. IHO-7).

As part of the May 2016 hearing request, the Parent challenges the appropriateness of the REDACTED determination to deny the Student REDACTED services to supplement her day program at the REDACTED (hereinafter referred to as REDACTED) based on an alleged impossibility or illegality by providing such services (Transcript dated June 13, 2018 pp. 1843-1854; Ex. D-1 at p. 3); that the Student should have been provided a REDACTED as part of her recommended day program at REDACTED for the REDACTED school years; that the recommended levels of related services in the areas of REDACTED and REDACTED as part of the Student's day program were inappropriate (Transcript dated June 13, 2018 pp. 1854-1856; Ex. D-1 pp. 3-4); and that the Student required a REDACTED 2 program in excess of REDACTED and the failure to provide such program constituted a denial of FAPE (Transcript dated June 13, 2018 pp. 1856-1859; Ex. D-1 at p. 5).

As part of the August 2016 hearing request, the Parent challenges the appropriateness of the REDACTED recommendation for placement of the Student for the REDACTED school year at the REDACTED (hereinafter referred to as "REDACTED") in that it does not give access non-disabled peers and does not constitute the least restrictive environment (hereinafter referred to as "LRE") for the Student; that the recommended program should have included REDACTED (Transcript dated June 13, 2018 pp. 1859-1860; Ex. IHO-5 at p. 3); challenges the REDACTED recommended levels of related services in the areas of REDACTED (Transcript dated June 13, 2018 at p. 1860; Ex. IHO-5 at p. 3); and asserts that the Student should have had a 1:1 teaching assistant as part of the REDACTED program (Transcript dated June 13, 2018 pp.

1843-1844, 1854-1855; Ex. IHO-5 at p. 3).

The District submitted a Response to Parent's IDEA Due Process Complaint Notice dated June 17, 2016 (Ex. D-2 pp. 1-10) which contains an explanation of why the District proposed or refused to take the action raised in the complaint (Ex. D-2 at pp. 1- 2), a description of other options the REDACTED considered when developing the amendment for the IEP on REDACTED and the reasons why those options were rejected (Ex. D-2 at p. 2), a description of each evaluation procedure, assessment, record, or report the REDACTED used as a basis for the proposed or refused actions when developing the amendment for the IEP on April 20, 2016 (Ex. D-2 pp. 2-3), and a description of the other factors relevant to the REDATED's proposed or refused actions when developing the amendment for the IEP on April 20, 2016 (Ex. D-2 at p. 3). The Response also includes

3 admissions, denials, and denials upon information and belief, as well as a number of "affirmative and complete response(s)," including the following: That the Complaint fails to state a cause of action upon which relief can be granted (Ex. D-2 at p. 6); that the District and/or the REDACTED provided and/or offered the Student a FAPE for the REDACTED school year, and all prior school years (Ex. D-2 at p. 6); that the REDACTED has, and continues to, generate, develop, and recommend appropriate IEPs for the Student, including, but not limited to, special education and related services in the LRE designed to meet and address the Student's needs (Ex. D-2 at p. 7); that the Student's IEPs were, and continue to be, reasonably calculated to enable the Student to receive educational benefits and make progress, and were appropriately implemented (Ex. D-2 at p. 7); that the Parent was provided with a meaningful opportunity to participate in the development of the Student's IEPs and IEP development process, and at all times the REDACTED reviewed and considered the Parent's concerns, input, and information (Ex. D-2 at p. 7); that the Student's IEPs were developed in accordance with all applicable Federal and State laws, rules, and regulations (Ex. D-2 at p. 8); that the District has acted at all times properly, appropriately, and otherwise in accordance with Federal and State laws, rules, and regulations (Ex. D-2 at p. 8); that the Parent's allegations are speculative, conclusory, and/or without merit (Ex. D-2 at p. 8); that a majority of the sessions for related and instructional services missed by the Student resulted from the Parent canceling such sessions (Ex. D-2 at p. 8); that the Parents [sic] have and continue to fail to cooperate with the District and its REDACTED (Ex. D-2 at p. 9); that the Student's IEP was developed in accordance with the IDEA and Part 89 of the Education Law, along with their corresponding regulations, Section 504 of the Rehabilitation Act of

The District also submitted a Response to Parent's IDEA Due Process Complaint Notice dated August 25, 2016 (Ex. IHO-6 pp. 1-7) which contains admissions and denials and a number of defenses, including the following: That to the extent inadequacies are alleged in the Student's IEP, the District denies such allegations and asserts that the District and/or REDACTED acted in accordance with statutory and regulatory procedures and the Parents [sic] were provided a meaningful opportunity to participate in the process (Ex. IHO-6 at p. 2); that the Parent's allegations are without merit (Ex. IHO-6 at p. 3); that the program/services demanded by the Parent are not appropriate for the Student and/or are not the least restrictive environment appropriate for the Student; nor can the Parent meet her burden of proof to establish same (Ex. IHO-6 at p. 3); that the District, its officers, employees, and agents have at all times acted properly, in good faith, appropriately, and otherwise in accordance with applicable Federal and State case law, laws, rules, and regulations (Ex. IHO-6 at p. 3); that the Parent's allegations are speculative, conclusory, and/or without merit or support (Ex.

IHO-6 at p. 3); that the equities are in the District's favor (Ex. IHO-6 at p. 4); that the Parent has failed and/or refused to cooperate with the District and/or the REDACTED and/or sub-REDACTED (Ex. IHO-6 at p. 4); that the Parent failed to participate in the REDACTED meeling(s) in good faith (Ex. IHO-6 at p. 4); that the Complaint fails to state a cause(s) of action entitling the Parent to the relief sought (Ex. IHO-6 at p. 4); that the District has fully complied with the IDEA, the Education Law, and Part 200 of the Regulations of the s

Commissioner of Education (Ex. IH0-6 at p. 4); that the Complaint fails, in whole or in part, to state a cause(s) of action and/or fails to set forth a claim upon which relief may be granted (Ex. IH0-6 at p. 5); that the District has offered and has provided the Student a FAPE in the LRE appropriate for the Student for the REDACTED school year and the Student's IEP was, and continues to be, reasonably calculated to enable the Student to receive educational benefits and make meaningful progress (Ex. IH0-6 at p. 5); that the Parent's allegations with regard to the District's recommended program and the Parent's desired program are speculative, would require impermissible retrospective and/or prospective and/or speculative testimony and are otherwise unfounded (Ex. IH0- 6 at p. 5); that the Parent cannot meet her burden (Ex. IH0-6 at p. 5); that the Parent's demanded relief is, in whole or in part, beyond the authority and/or jurisdiction of the Impartial Hearing Officer (Ex. IH0-6 at p. 6); that the allegations in the Complaint and/or the Complaint is internally inconsistent (Ex. IH0-6 at p. 6); that the Complaint brought by the Parents [sic] is frivolous, unreasonable, without foundation and the Parents' [sic] request for a Due Process Hearing is presented for an improper purpose and is an abuse of the hearing process (Ex. IH0-6 at p. 6); and that the District reserves its right to seek attorneys' fees and costs from the Parents [sic] and/or Student to the extent permitted by law (Ex. IH0-6 at p. 6).

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PROCEDURAL HISTORY

Ten days of hearing in this matter were held before the first IHO's determinations to dismiss the Parent's Due Process Complaint Notices dated May 23, 2016 (Ex. IHO-3) and August 19, 2016 (Ex. IHO-1) respectively (See Exs. IHO-3, IH0 - 21). Those hearings were held on August 8, August 12, September 16, September 23, October 28, November 7, and December 16, 2016, as well as on January 20, February 27, and March 8, 2017 (See Transcript dated August 8, 2016 pp. 1-268; Transcript dated August 12, 2016 pp. 269-456; Transcript dated September 16, 2016 pp. 1-163;

Transcript dated September 23, 2016 pp. 164-398; Transcript dated October 28, 2016 pp. 399-572; Transcript dated November 7, 2016 pp. 573-757; Transcript dated December 16, 2016 pp. 758-955; Transcript dated January 20, 2017 pp. 956-1091;

Transcript dated February 27, 2017 pp. 1092-1307; and Transcript dated March 8, 2017 pp. 1308-1411). The first IHO also held two telephone conferences regarding the case on November 21, 2016 and on April 5, 2017 (See Transcript dated November 21, 2016 pp. 1-8 and Transcript dated April 5, 2017 pp. 1412-1449). The first IHO issued a Pendency Order on August 18, 2016 (Ex. IHO-4). She did not issue an additional ruling on pendency, following a change in circumstances, after the hearing held on September 16, 2016 (Transcript dated September 16, 2016 pp. 1-161).

An additional five days of hearing in this matter were held, after this case was remanded by the SRO, by a second IHO on September 7, November 2, December 6, and December 7, 2017, as well as on February 15, 2018 (See Transcript dated September 7, 2017 pp. 1-25; Transcript dated November 2, 2017 pp. 1450-1460;

Transcript dated December 6, 2017 pp. 1461-1624;Transcript dated December?, 2017 pp. 1625-1634; and Transcript dated February 15, 2018 pp. 1635-1815).

The second IHO recused himself during the hearing on Remand and, on or about March 26, 2018, I was the third hearing officer appointed to hear this matter (See Transcript dated June 13, 2018 at p. 1819). This IHO reviewed the extensive records of the proceedings held in this matter, together with the proceedings held in a separate matter brought by the Parent regarding the same child (for which this IHO was also assigned), prior to holding pre-hearing conferences in each separate matter (Ex. IH0-

23). Both Pre-Hearing Conferences were held on June 13, 2018 (See Transcript dated June 13, 2018 pp. 1816-1872, which involves this particular matter), to review the remaining issues on Remand and to schedule additional hearing dates1. Additional hearings were ultimately held in this matter on October 17, October 18, and December 4, 20192 (See Transcript dated October 17, 2019 pp. 1961-1996; Transcript dated October 18, 2019 pp. 1997-2226; Transcript dated December 4, 2019 pp. 2227-2258). There were also two additional pre-hearing telephone conferences held to discuss various issues, including scheduling, on May 1 and June 19, 20193.

1 Insofar as there was a concurrent hearing being held before this IHO on a separate Due Process Complaint Notice, the parties determined that this case would be heard in its entirety after the completion of the other Impartial Hearing, to avoid confusion of the parties between the two separate proceedings. A motion to consolidate these cases was denied by the first IHO (Transcript dated October 17, 2019 pp.

1992-1993; Ex. IHO-8)..

2 Hearings concluded in the concurrent matter on October 17, 2019, and the remainder of the day was used to continue the hearings in this matter.

3 No hearings were held from October 10, 2018 until May 2019 due to the serious illness of the Parent's Advocate (Exs. IHO-44, IHO-45, IHO-46, IHO-47, IHO-48, IHO-49, IHO-50, IHO-51, IHO-52, IHO-53,

IHO-55). Two pre-hearing telephone conferences were held in both cases on May 1, 2019 and June 19, 2019 to schedule additional hearing dates (See Transcript dated May 1, 2019 pp. 1873-1900 and Transcript dated June 19, 2019 pp. 1939-1960). Hearings in the concurrent case were ultimately scheduled for June 2019 and July 2019 based on the parties' availability. Hearings in the concurrent The District presented 11 witnesses on its direct case. The Parent presented 3 witnesses on her direct case. The District determined not to present a rebuttal case.

The District submitted a total of 11O exhibits. The Parents submitted a total of 3 exhibits. The IHOs submitted a total of 61 exhibits. Both parties submitted post-hearing Closing Statements (Exhs. IHO-60, IHO-61). The actual record close date was January 22, 2020. This IHO's decision was due on February 5, 2020.

ISSUES

Pursuant to the State Review Officer's Decision, this Impartial Hearing Officer shall decide the following issues:

• • Whether the REDACTED determination to deny the Student REDACTED to supplement her day program at the REDACTED during the REDACTED and REDACTED school years was appropriate and, if not, whether the Student was denied a FAPE;

case scheduled in June 2019 were adjourned due to a death in the Parent's Advocate's family. The hearing dates scheduled for July 2019 in the concurrent case were adjourned due to a death in the Parent's family. An additional pre-hearing telephone conference was held in the concurrent case to schedule additional hearing dates, which were ultimately scheduled for September 2019 due to the parties' unavailability. The hearing scheduled for September 5, 2019 in the concurrent case was ultimately canceled due to the Parent's illness and the Advocate's refusal to appear at the District without the Parent being present, despite the Parent's willingness to be available by telephone conference for the hearing. Hearings in the concurrent case continued on September 10, September 24, and October 17, 2019. Additional hearings in this matter began on October 17, 2019 and continued on October 18, 2019. Hearings in this matter were completed on December 4, 2019 (See Transcript dated October 17, 2019 pp. 1961-1996; Transcript dated October 18, 2019 pp. 1997-2226; Transcript dated December 4, 2019 pp. 2227-2258).

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• • Whether the REDACTED determination to deny the Student the services of a REDACTED as part of her recommended day program at the REDACTED for the REDACTED and REDACTED school years was appropriate and, if not, whether the Student was denied a FAPE;
• • Whether the REDACTED recommendation with respect to the provision of REDACTED as part of the REDACTED program during the REDACTED school years was appropriate and, if not, whether the Student was denied a FAPE;
• • Whether the REDACTED recommendation with respect to the provision of REDACTED as part of the REDACTED during the REDACTED school years was appropriate and, if not, whether the Student was denied a FAPE;
• • Whether the REDACTED recommendation with respect to the provision of REDACTED, rather than recommending REDACTED, was appropriate and, if not, whether the Student was denied a FAPE;
• • Whether the REDACTED recommendation for placement of the Student in the REDACTED for the REDACTED school year constituted the LRE and, if not, whether the Student was denied a FAPE;
• • Whether the Student required REDACTED, in addition to the recommended program at REDACTED for the REDACTED in order to receive a FAPE for the REDACTED school year and if so, whether the Student was denied a FAPE.
• • Whether the REDACTED recommendation with respect to the provision of REDACTED as part of the REDACTED program was appropriate and, if not, whether the Student was denied a FAPE;

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• • Whether the REDACTED recommendation with respect to the provision of REDACTED as part of the REDACTED program was appropriate and, if not, whether the Student was denied a FAPE;
• • Whether the REDACTED recommendation with respect to the provision of REDACTED as part of the REDACTED program was appropriate and, if not, whether the Student was denied a FAPE; and
• • Whether the Student required the services of a REDACTED as part of her placement in the REDACTED program for the REDACTED school year and, if so, whether the REDACTED failure to recommend REDACTED for the Student constituted a denial of FAPE.

FINDINGS OF FACT

REDACTED is New York State certified in early childhood special education and general education. She has been employed by the REDACTED since 2012 as a teaching assistant and, beginning in the summer 2015, she became the special education teacher in the REDACTED classroom (Transcript of August 8, 2016 pp. 100-102). She described her training regarding students with REDACTED in the "REDACTED" curriculum (REDACTED), which includes REDACTED. The REDACTED program was used in her classroom. REDACTED described REDACTED to work on their IEP goals. She described REDACTED as the REDACTED, where students learn REDACTED. In the REDACTED portion of the day, REDACTED is taken on the REDACTED. At the time of her testimony, she was at the "REDACTED" level, the first tier of certification, and was slated to be at program manager by November 2016, where she would be able to REDACTED independently for students without her supervisor,

REDACTED testified that she was the Student's special education teacher in the REDACTED class placement at REDACTED during the REDACTED school year. She first became familiar with the Student in summer 2015, when she began working with her. Prior to becoming the Student's teacher she spoke with the Student's previous teacher, REDACTED, and she reviewed the following reports: A social history dated May 21, 2014 (Ex. D-30); a REDACTED evaluation dated May 21, 2014 (Ex. D-31); a REDACTED evaluation addendum dated May 28, 2014 (Ex. D-32); and an annual review progress report dated January 29, 2015 (Ex. D-41) (Transcript dated August 8, 2016 pp. 102-107, 128).

REDACTED described in detail the results of two administrations of the REDACTED completed by her, in which she assigned ratings which corresponded to particular age levels at which the Student was functioning in various areas including REDACTED, REDACTED areas (Transcript dated August 8, 2016 pp. 107-119; Ex. D-94A).

REDACTED also described the REDACTED Program Guide, which was completed by her and the Student's prior teacher, REDACTED, which shows the REDACTED programs which the Student already mastered (designated by an "REDACTED") and the programs on which she was working (designated by an "O"), to determine which REDACTED programs to work on with the Student. REDACTED is taken in each listed area REDACTED to determine whether there is mastery. Once mastered, REDACTED to be sure the particular skills are maintained. REDACTED described the Student's progress in each of the programs she worked on by comparing her performance on skills worked on during the REDACTED school year with REDACTED and the skills worked on during the REDACTED school year with REDACTED. As of June 2016, the Student mastered REDACTED (Transcript dated August 8, 2016 pp. 119-129; Ex. D-94B).

In the area of REDACTED, the Student received a 1:1, 15-minute session one time per day, in which she would REDACTED and she would interact with REDACTED to work on REDACTED. In the area of REDACTED once per week on the REDACTED. The REDACTED occurs once daily and the REDACTED occurs at least 10 times per day. The Student also worked on REDACTED sessions per day where REDACTED (Transcript dated August 8, 2016 pp. 130-131, 173-174).

REDACTED reviewed the Student's IEP for the REDACTED and for the REDACTED school year and discussed her functional levels. There were significant delays in REDACTED. She described the Student's level of impairment in REDACTED as "severe." The Student REDACTED when she used a REDACTED (hereinafter referred to as "REDACTED") book and during the year she used a REDACTED, her REDACTED (Ex. D-14 at p. 3). In September 2015, the Student engaged in REDACTED (REDACTED) when she was frustrated (Ex. D-14 at p. 3). As of June 2016, the quantity and intensity of the behaviors decreased dramatically. REDACTED and REDACTED had a purpose as of June 2016, whereas in September 2015 staff did not REDACTED.

Socially, as of September 2015, she REDACTED; she required REDACTED, and she REDACTED (Ex. D- 14 pp. 3-4). The REDACTED decreased significantly as of June 2016. In September 2015, the REDACTED was very difficult for the Student, and she had to REDACTED (Ex. D-14 pp. 3-4). In June 2016, the Student came into the classroom without REDACTED and was able to REDACTED with adult prompting. In September 2015, the Student needed to improve her REDACTED and interactions with peers and adults, and decrease REDACTED (Ex. D-14 at p. 5). In June 2016, there was no

REDACTED at all, her interaction with adults improved drastically and she interacted with certain peers. REDACTED testified that in September 2015, the Student was able to REDACTED when given instruction (Ex. D-14 at p. 5). As of June 2016, the Student could REDACTED with a directive (e.g., "do this") and, similar to September 2015, she still REDACTED to adults when engaged in REDACTED (Transcript dated August 8, 2016 pp.134-138, 199; Ex. D-14 at p. 5).

REDACTED described the Student's physical development in September 2015, specifically her REDACTED skills. She stated that her REDACTED skills were "always pretty much at each level," and "age appropriate." She was able to walk through the classroom, run on the playground, and could avoid objects in her way without falling.

REDACTED were more difficult for her, and she did not enjoy REDACTED activities. She described the Student's level of REDACTED impairment as "severe." She had difficulty REDACTED; and she did not REDACTED shown to her. She had an REDACTED. In June 2016, she was able to REDACTED, an improvement in REDACTED to activities; she could still REDACTED, create a REDACTED, and REDACTED. In September 2015, the Student's rate of acquisition of skills was slow and inconsistent.

As of June 2016, the Student's rate of acquisition of skills was still slow but not as inconsistent and she still acquired skills best in a REDACTED setting (Transcript dated August 8, 2016 pp. 138-141, 186-188, 219-222).

REDACTED stated that she worked on goals 1, 2, 3, 4, and 11 during the REDACTED school year. Goals 1 and 2 were implemented using REDACTED and REDACTED. REDACTED was taken through recorded observations of the Student. By June 2016, although the Student could not REDACTED, she was able to REDACTED. Goal 4 was implemented during REDACTED and REDACTED. The Student was handed a REDACTED "REDACTED" and if she could REDACTED, that meant she was responding to the REDACTED directive. Often the Student could REDACTED without help; she could find her REDACTED; she could REDACTED; but had trouble REDACTED, which was implemented through the use of REDACTED. She was given prompts to wait. In September 2015, she waited about 10 seconds. In June 2016, she waited up to a minute. Goal 11 was implemented using REDACTED, e.g., "REDACTED," in which a student responds by relinquishing a REDACTED to the instructor. A student gets a REDACTED once she REDACTED a REDACTED after the instructor. The Student continued to work on REDACTED (Transcript dated August 8, 2016 pp. 141-146; Ex. 0-14 pp. 6-7, 9).

REDACTED reviewed the Student's Progress Report dated June 2016 (Ex. 0-92). With respect to goal 1, REDACTED, the Student was progressing satisfactorily, in that she achieved two out of three benchmarks. The Student was able to REDACTED and REDACTED on activities including REDACTED. She was not able to REDACTED using objects, although she worked on that goal in REDACTED. She required prompting to REDACTED appropriately. As of June 2016, she was able to REDACTED using objects. REDACTED described the Student's progress as consistent (Transcript dated August 8, 2016 pp. 147-150, 194-195, 237,

245-246; Ex. 0-92 at p. 3).

With respect to goal 2, REDACTED, the Student was progressing satisfactorily, in that she achieved REDACTED and, at the time of her testimony on August 8, 2016, she was able to REDACTED. Her progress was consistent. She had not begun

REDACTED (Transcript dated August 8, 2016 pp. 150, 237-238; Ex. 0-92 at p. 4). On goal 3, REDACTED, the Student was progressing satisfactorily, as she was able to REDACTED. She achieved the benchmarks of REDACTED. Her progress was consistent (Transcript dated August 8, 2016 pp. 151-152, 238, 246-248; Ex. 0-92 pp. 4-6).

The Student was also progressing satisfactorily on goal 4, REDACTED. She achieved 3 of 4 benchmarks, including REDACTED. With respect to the 4th benchmark, REDACTED, she was able to REDACTED. Progress on each goal was measured using REDACTED and REDACTED, part of the REDACTED program. The Student's REDACTED were increased from two to three REDACTED lasting 30 minutes each in February 2016. Her progress was consistent, with the exception of benchmark 4.4, involving REDACTED (Transcript dated August 8, 2016 pp. 152-153, 222, 248-249; Ex. D-92 pp. 6-7).

On goal 11, REDACTED, the Student was progressing satisfactorily. She achieved 3 of 4 benchmarks including, during REDACTED, responding to "REDACTED" by REDACTED to an instructor; use of REDACTED; and engaging in REDACTED. She continued to work on REDACTED (when prompted by REDACTED) by REDACTED during the activity. Her progress was consistent (Transcript dated August 8, 2016 pp. 153-154, 249-250; Ex. D-92 pp. 13-14). In sum, REDACTED testified that since April 2016, the Student's progress on her goals was consistent, attributable partly to the increase in REDACTED from 2 to 3 times per day, and partly due to the Student's level of maturity (Transcript dated August 8, 2016 pp. 252-253).

REDACTED met with the Student's REDACTED therapist and REDACTED therapist one time every 6 weeks to discuss the Student's activities in therapies, and the therapists entered the classroom every afternoon or between dropping children off to observe the Student and make programming suggestions. REDACTED testified that the Student was appropriately placed in her classroom, that she made progress throughout the year with her academics and her REDACTED, and that she fell within the middle of her class range. She observed regression over school breaks, but not on a day-to-day basis (Transcript dated August 8, 2016 pp. 154-156).

REDACTED attended the Student's annual review on February 1, 2016, where she described the Student's progress as slow and inconsistent. She advised the Parent that the REDACTED needed to be reduced because she regressed over the winter break. However, in or around April 2016, although the Student's progress continued to be slow, it was no longer inconsistent. She was consistently REDACTED and in May 2016 began to consistently REDACTED. REDACTED stated that beginning in February 2016 there was increase in the number of REDACTED for this Student from 2 to 3 times per day. She and her assistants and REDACTED, REDACTED, ran the REDACTED. Her assistants were also trained in REDACTED and all have their REDACTED certificate. All students receive REDACTED 2 times per day for 15 minutes, but the teacher can customize the service to meet the individual needs of each student. The whole REDACTED program consisted of REDACTED (Transcript dated August 8, 2016 pp. 156- 158, 166-167, 169-173, 178-180, 213-216, 236-237; Ex. D-17).

REDACTED described the Student's REDACTED and interactions with other students when she entered REDACTED classroom in July 2015. She came into the classroom REDACTED. Towards the end of the year in June 2016, the Student usually REDACTED. Her REDACTED improved a little bit. When entering the classroom, REDACTED said hello to her each day, and the Student responded by REDACTED. The Student could also perform more REDACTED. However, with REDACTED, she REDACTED a little bit more and she said REDACTED spontaneously, but there was no other REDACTED. The Student requested what she wanted with the REDACTED, with assistance. When agitated, she did not REDACTED but when calm, such as during snack time or table time, she communicated which REDACTED she wanted. Socially, she approached children and touched them in a nice way, rather than an REDACTED way (Transcript dated August 8, 2016 pp. 158-161, 197-199, 232-233).

REDACTED testified that the general rule in the program is that related services are provided up to 4 times per week, and the fifth day is reserved for make-up sessions when children are absent. She did not believe that services 4 days per week, instead of 5 days per week, affected the Student, since skills worked on in REDACTED and REDACTED were carried over into the classroom on a daily basis by herself and her assistants. REDACTED also stated that the Student received make-up services on the fifth day almost every week, because of her need to make up missed sessions. She also testified that in addition to the services she received at school, the Student received additional REDACTED from the District. From September 2015 through April 2016, there were two assistants in the classroom. Starting in April 2016, there were three assistants in the classroom. She also testified that the Student's attendance during the REDACTED school year was inconsistent although she did not have too many absences (Transcript dated Augusta, 2016 pp. 161-162, 164, 234-236).

REDACTED, formerly known as REDACTED, holds a Masters Degree in special education with a concentration in REDACTED. She participated in the REDACTED Program, which was a segue into her advanced certificate in REDACTED (hereinafter referred to as "REDACTED"). She possesses four New York State teaching certifications, birth through 2 and 1 through 6, as well as students with disabilities birth through 2 and 1 through 6. She is also a REDACTED (hereinafter referred to as a "REDACTED") as well as licensed REDACTED. The license as a REDACTED is a national certification. Her concentration is persons with REDACTED and REDACTED disabilities. The board certification as a REDACTED is national, but the REDACTED license is from the State of New York (Transcript dated August 12, 2016 pp. 300-304).

REDACTED set forth her work history with students with REDACTED. She is currently employed as the REDACTED clinical coordinator at the REDACTED. She met the Student in September 2014, when she attended a class that REDACTED oversaw. She reviewed a REDACTED Referral Form completed by REDACTED to seek additional REDACTED strategies for the Student due to the Student's REDACTED which occurred on a daily basis. REDACTED conducted an observation and REDACTED was taken. She then conducted a Functional Behavioral Assessment (hereinafter referred to as an "FBA") to determine the cause(s) of the behaviors and to replace the inappropriate behaviors which were impeding her ability to learn in the classroom. She provided REDACTED and the Parents with the Functional Assessment Screening Tool (the "FAST") to complete for behaviors seen at school and home and to determine the function(s) of the behavior(s). It was determined that the functions of the behaviors were to REDACTED. The next step was to develop strategies that specifically addressed each function and each behavior, in the form of a Behavior Intervention Plan (hereinafter referred to as a "BIP"). The Student received reinforcement for each response she produced, such as REDACTED (Transcript dated August 12, 2016 pp. 305-340; Exs. D-20, D-22, D-23, D-24).

REDACTED reviewed the Student's Behavior Profile dated September 21, 2015, which contains a general overview of how the Student learns, what skills she has, medical notes, and that the Student has a BIP (Transcript dated August 12, 2016 pp. 340-341; Ex. D-27). She also reviewed a Quarterly Progress Report for the BIP dated January 25, 2015, indicating decreases in REDACTED but an increase in REDACTED (Transcript dated August 12, 2016 pp. 341-344; Ex. D-39). She reviewed another Quarterly Progress Report for the BIP dated March 30, 2015 and a third Quarterly Progress Report dated June 8, 2015, which showed that compared to her baseline, her behaviors drastically decreased for all of the behaviors indicated on the progress report and she recommended continuation of the BIP. She also reviewed the Quarterly Progress Report dated July 27, 2015, which indicated that compared to the baseline of the FBA and BIP, behaviors were at very low levels. REDACTED reviewed the next Behavior Profile dated November 3, 2015, which continued to show very low levels of behavior when compared to the baseline of behaviors observed in October 2014. She testified that the intensity and duration of her behaviors decreased as well, although no REDACTED. REDACTED did not directly work with the Student after January 2016 (Transcript dated August 12, 2016 pp. 347-353, 356, 385-386; Exs. D-45, D-49, D-54, D-60, D-81).

REDACTED testified that the BIP was not implemented until there was REDACTED approval on REDACTED. Prior to that lime, the Student's negative behaviors were targeted through the use of the REDACTED program which included use of REDACTED. However, the Student needed additional behavior strategies. REDACTED stated that in the beginning of the year, staff typically take REDACTED and observe behaviors prior to initiating either behavior guidelines, and FBA, or a BIP to see the students' adjustment to the classroom setting (Transcript dated August 12, 2016 407, 428-432, 451-452; Ex. D-6).

REDACTED is the Director of the REDACTED. Prior to that time, she had additional positions at the REDACTED which included Assistant Director, a classroom teacher, a clinical coordinator, and an educational supervisor. She holds New York State certifications in special education N-12, art education, a Supervisor of Administrative Services ("SAS") and School District Administrator ("SDA"). She testified with respect to the REDACTED program as ii related to a hearing over the issue of pendency for the Student (Transcript dated September 16, 2016 pp. 26-29).

The REDACTED consists of a stand-alone building which provides educational services for 140 REDACTED children with disabilities. There is no interaction with non-disabled peers. Half of the Students are REDACTED. The program includes two REDACTED classes. This Student attended one of those classrooms for two years. The length of the school day runs from 9:00 a.m. to 2:30 p.m., 5 days per week, utilizing the REDACTED curriculum, an REDACTED-based curriculum that incorporates REDACTED throughout the day, to work on student goals. Every student has an individual schedule that incorporates their REDACTED, their therapies and their REDACTED. Snack is provided two limes per day. There is lunchtime; playground lime; and art lime. This Student also attended REDACTED therapy and REDACTED therapy as part of her program during the REDACTED school year. REDACTED methodology is used throughout the day. The Student received two 30-minute sessions of REDACTED until April 2016, when her program was reviewed and it was determined to add an additional 30-minute session of REDACTED per day. REDACTED is taken for every REDACTED. REDACTED is taken for REDACTED once per week and for REDACTED one time a week. Art activities are done daily, which reinforces REDACTED by using different utensils, such as crayons, markers, or brushes. REDACTED and REDACTED are also part of the art program. REDACTED therapy includes such activities as working on REDACTED. REDACTED therapy included such activities as jumping, running, walking, ball skills, and reinforcement of concepts of in, over, and under using crawling through a tunnel, standing in a circle, or crawling under a balance beam. They also worked on self-regulation, such as fast-slow and stop-go through REDACTED movement. In recess,students liked to use equipment such as slides and stairs which involve REDACTED skills. They are also reinforcing REDACTED (Transcript dated September 16, 2016 pp. 29-44).

REDACTED testified that teaching assistants and aides give instruction REDACTED under the supervision of the classroom teacher, but they do not instruct the class. However, aides are required to get their level one teaching assistant credential within 6 months of beginning employment. She stated that aides cannot teach and she did not believe this Student should be educationally placed in a school where teacher aides give direct instruction (Transcript dated September 16, 2016 pp. 48-51).

REDACTED is the Principal of the REDACTED program and has been employed in that capacity for 19 years. She held other positions at REDACTED including Principal and Assistant Principal of REDACTED school programs. Prior to her work at REDACTED, she was a classroom teacher in several different educational institutions. She testified that the REDACTED program is housed in a building that services 173 students, approximately 85% of which fall within the REDACTED. The ratios of the class programs are REDACTED. There are no typically-developing peers in the program (Transcript dated September 16, 2016 pp. 59-62).

REDACTED stated her familiarity with the Student, for whom screening packets were sent on two occasions to the REDACTED program, and she underwent a screening for the program. The Student was accepted to the program. REDACTED reviewed the Student's IEP dated April 20, 2016 for the REDACTED school year. She stated that the REDACTED program ran from 9:00 a.m. until 3:00 p.m., a 5-1/2 hour school day. Students are escorted off the bus into their classrooms where they are prompted and assisted to engage in an initial school routine including REDACTED, depending on the individual needs of a student. Each student had an individual schedule for specials and related services. The REDACTED program uses REDACTED methodology. REDACTED is addressed throughout the school day through the use of visuals and other means appropriate for each student. REDACTED is incorporated into the day as a reinforcing item, for REDACTED. Throughout the day students are encouraged to be independent through the use of REDACTED. Depending on the schedule for the day and related services, students might receive four or five REDACTED per day, lasting 30 minutes each. Academic REDACTED is taken daily, and program REDACTED and behavioral REDACTED are taken depending on the needs of the student. Students participate in art, gym, and music. Art instruction in the REDACTED includes work on REDACTED skills through a variety of materials, such as clay, feathers, and use of small and large paint brushes. In music, students REDACTED, follow along with a tune, and may march, dance, or engage in other types of movement. They also work on REDACTED and use of instruments (Transcript dated September 16, 2016 pp. 62-72; Ex. D-12).

REDACTED also testified regarding activities in which students engage in gym, such as REDACTED, gross motor skills including movement at various speeds, running, jumping, hopping, crawling under things, going over things, ball skills, skipping skills, and throwing skills, as well as balance activities, obstacle courses and stretching activities. There are two playground areas. One area is a fenced-in grass area where a teacher develops appropriate activities for the class. The other area is a large, fenced-in area where students can climb, slide, go under things, and turn things such as a wheel.

REDACTED is addressed throughout the school day. REDACTED reviewed the Student's IEP and testified that it could be implemented in the REDACTED program (Transcript dated September 16, 2016 pp. 73-79; Ex. D-12 pp. 10-12).

REDACTED stated that in the REDACTED classes, there is a teacher, who develops the REDACTED, teaches children, completes progress reports, communicates with parents and other professionals to discuss all the educational needs of the student, and conducts REDACTED. Teaching aides REDACTED and reinforce what the teachers have already taught. They do not instruct the children. They might also take REDACTED during a group activity. They may work on maintenance of skills already mastered by a child. The aides conduct REDACTED of what the teacher has already begun for purposes of reinforcement. They can reinforce the use of REDACTED during the school day, and they may prompt a student and model for a student in the use of a REDACTED during an interaction (Transcript dated September 16, 2016 pp. 80-107).

The Parent testified that she was on the Parents' Association Board of the REDACTED during the REDACTED school year. She had access to all of the classrooms and she was in the school, on average, between 2 and 3 times per week. She stated that she became aware that teacher aides were teaching students in the REDACTED program when she went for tours of classrooms and met with staff as part of the placement process for her child (Transcript dated September 16, 2016 pp. 119-122).

The Parent testified as to several differences which she noticed between the REDACTED program and the REDACTED program, including the following: The level of security; that REDACTED only had REDACTED classes and REDACTED had a variety of ratios of students with different levels of deficits; that teacher-created curriculum is used at REDACTED versus the REDACTED program at REDACTED; and that the REDACTED staff person conducting the tour did not give her informed answers to her questions. The Parent testified that she sent an e-mail to the REDACTED, REDACTED, to advise that she had a problem with teacher aides teaching her child, and he responded that he would be looking into it (Transcript dated September 16, 2016 pp. 124-126). She also testified that she sent a letter to REDACTED requesting that REDACTED reject the Student as it could not meet her needs, and if he did not, that she would immediately commence a lawsuit against REDACTED and REDACTED, and she would have a demonstration outside of REDACTED administrative offices and the school to apprise the press of the fact that teacher aides give direct instruction to students. The Parent testified that she worked as a paraprofessional in the REDACTED Schools prior to her maternity leave, and that she never worked as a teacher (Transcript dated September 16, 2016 pp. 130-138).

REDACTED is a New York State certified REDACTED that also possesses certification through the REDACTED. She is also certified as a Teacher of Students with REDACTED. She was employed by REDACTED since June 2014 and had prior experience as a REDACTED in the capacities as a consultant and as an employee. REDACTED provided REDACTED to the Student starting in the REDACTED school year for 4 times per week. She reviewed a REDACTED evaluation from the REDACTED School dated May 12, 2014 (Ex. 0-28) to obtain information relating to her skill level and she reviewed her test scores to gauge her strengths and weaknesses. She also reviewed the Student's IEP (Ex. 0-5). She testified that the Student's functional levels in REDACTED as listed on the IEP appropriately described the Student's functioning level when she first began to work with her. She demonstrated delayed REDACTED. REDACTED, but she had no REDACTED at that time. REDACTED, she exhibited REDACTED. REDACTED, the Student had REDACTED and she did not attempt to REDACTED (Transcript dated September 23, 2016 pp. 202-211; Ex. 0-5 at p. 4).

REDACTED testified that she worked with the Student on goals 1, 2, 3, and 4. Goal 1 related to her need to REDACTED (Ex. 0-5 pp. 4, 6). Goal 2 related to her need to REDACTED as well as REDACTED (Ex. 0-5 pp. 4, 6). Goal 3 addresses her need to use REDACTED, an REDACTED skill (Ex. 0-5 pp. 4, 6-7). Goal 4 related to use of REDACTED, starting with REDACTED. REDACTED was taken during every session (Ex. 0-5 pp. 4, 7) (Transcript dated September 23, 2016 pp. 212-213).

REDACTED reviewed the Student's progress on her goals, referring to her Quarterly Progress Report dated November 4, 2014. The Student improved in her ability to REDACTED. She used REDACTED independently or with minimal cueing. She also took the therapist's REDACTED. When presented with a REDACTED, the Student independently REDACTED. She was also able to REDACTED. She demonstrated the ability to REDACTED with up to 90% accuracy independently or given minimal cues. She also began to REDACTED, e.g., REDACTED. The Student was not, however, consistently REDACTED from session to session (Transcript dated September 23, 2016 pp. 216-218; Ex. 0-35).

REDACTED also reviewed the Annual Review REDACTED Progress Report dated January 23, 2015 with the IEP dated May 27, 2015, and confirmed that the results of her testing appear on the IEP. The IEP also reflects her report that the Student made significant progress in her ability to REDACTED; she demonstrated the ability to establish and maintain REDACTED independently; that she did not REDACTED; that she was beginning to demonstrate some progress in her ability to REDACTED; and that she demonstrated frequent use of REDACTED (Transcript dated September 23, 2016 pp. 222-224; Exs. D-13, Dc38).

REDACTED testified that as of May 2015, the Student's needs included improvement in REDACTED, and goals 5 and 6 of the IEP for the REDACTED school year involved the Student's use of REDACTED; goal 7 was a REDACTED goal; goal 8 involved a REDACTED; goal 9 involved REDACTED and goal 10 involved following REDACTED, a REDACTED goal. REDACTED stated that the goals were appropriate as they addressed the Student's needs at the time (Transcript dated September 23, 2016 pp. 225-229; Ex. D-13 pp. 7-8).

REDACTED explained her use of a regression measurement tool in making a judgment as to whether the Student would qualify for summer services. There was a break from school for 25 days and the Student demonstrated significant regression in her ability to REDACTED. The Student qualified to receive REDACTED 4 times per week from July 6 until August 14, 2015, which she believed was an appropriate amount of service to maintain her skills for the summer. It was the same amount of service she received during the REDACTED school year. When asked whether the Student needed the service 5 times per week, she stated that she conducted make-up services with the Student on the fifth day and she never saw in her REDACTED or observations any significant improvement on the weeks she was seen 5 times per week. She also stated that the program is REDACTED, and she is exposed to REDACTED throughout the day (Transcript dated September 23, 2016 pp. 230-234, 289-290; Ex. D-38 at p. 3).

REDACTED also testified about the Student's use of a REDACTED. She was trained in the use of REDACTED directly by her supervisor, REDACTED, and learned how to use the REDACTED, how to REDACTED, and utilize it in REDACTED. REDACTED entered classrooms at REDACTED more than monthly to be sure staff were using the REDACTED appropriately throughout the day, that they had an understanding of how they use the REDACTED for each child, and that the books and devices were within reach of the child at all times, including this Student. The Student has used the REDACTED continuously since June 2015. She started with REDACTED and by August 2016, REDACTED added up to REDACTED. She discriminated more easily between some REDACTED than others. She had between REDACTED; she had a REDACTED. REDACTED added a section for home, including REDACTED and family members. The Student became to understand that it was a REDACTED and she increased in her ability to use it independently, i.e., without prompting (Transcript dated September 23, 2016 pp. 234-241).

REDACTED confirmed that she prepared quarterly progress reports that addressed the Student's progress on her goals and objectives (Transcript dated September 23, 2016 pp. 241-262; Exs. D-9, D-13, D-44, D-56, D-61, D-68, D-83, D-92). She reviewed the Student's Annual Review Progress Report and described the results of informal testing of the Student's REDACTED skills, which fell in the REDACTED range. She REDACTED; she maintained REDACTED; and she REDACTED and REDACTED if she wanted someone's attention or if she was upset by something. Her REDACTED skills also measured in the REDACTED range, meaning that she

REDACTED. She demonstrated substantial regression over the December 2016 break. The Student qualified for summer services for 2016 and she worked on goals 3 and 4 (Transcript dated September 23, 2016 pp. 252-258; Exs. D-13, D-17, D-66).

REDACTED reviewed the Student's Progress Report from June 2016. She stated that the Student was progressing gradually with some inconsistent progress between sessions. She stated that between June 2014 and June 2016, in addition to the Student's progress REDACTED, she demonstrated an increase in REDACTED; she became more REDACTED, and REDACTED, which prepares students for REDACTED; she also demonstrated improvement in her REDACTED, more frequently and consistently REDACTED such as REDACTED. The Student made no progress in REDACTED between June 2014 and June 2016. She also did not make progress in REDACTED between September 2014 and December 2014, but she became less REDACTED as of April 20, 2016, when REDACTED went on maternity leave (Transcript dated September 23, 2016 pp. 263-266, 273, 295, 300-301, 303-304; Ex. D-

92).

REDACTED testified that as of June 2016, the Student still demonstrated inconsistent progress in her REDACTED functioning; she still had difficulty with REDACTED; and that she had inconsistent progress in her ability to REDACTED (Transcript dated September 23, 2016 pp. 351-354; Ex. D-83).

REDACTED is a New York State licensed REDACTED therapist, who was employed by REDACTED for 10-1/2 years at the time of her testimony. She was a staff REDACTED therapist until March 2016, whose duties were to treat children five days a week, collect REDACTED, write annual review reports and progress reports, and conduct evaluations.

Commencing in March 2016, she became an REDACTED coordinator with supervisory duties. REDACTED was the Student's REDACTED therapist for the REDACTED school year. Her first Quarterly Progress Report dated October 26, 2015 summarizes the Student's progress on her goals relating to REDACTED. The Student did not consistently REDACTED, and her rate of progress was directly related to her REDACTED from session to session. She also reviewed the Student's Annual Review Progress Report from January 5, 2016, which indicates that the Student made improvement with REDACTED, making it easier to work on REDACTED activities. She also exhibited less REDACTED when REDACTED. However, she regressed in her ability to REDACTED after the winter break. She improved in her ability to REDACTED with a lot of assistance, and she progressed in her ability to REDACTED. REDACTED completed a non­ standardized checklist which showed that the Student had some skills at the REDACTED level and there were scattered skills up to the REDACTED level. In sum, the Student made slow · gains, and she needed a lot of physical assistance to complete activities in terms of her IEP goals (Transcript dated October 28, 2016 pp. 441-456; Exs. D-59, D-64).

REDACTED testified that the Student made progress in her ability to REDACTED (goal 12), but she could not REDACTED. However, the Student was progressing satisfactorily on this goal by the end of the REDACTED school year, in that she achieved the benchmark of REDACTED. She REDACTED, but not for a very long time. She testified that the Student did not make progress on that goal, but marked on the progress report that she was progressing gradually (goal 13). Ultimately the Student did not achieve the benchmarks. She made minimal progress (e.g., 0% to 20%) with REDACTED (goal 14) (e.g., REDACTED) until she switched to use of a REDACTED in March 2016 and REDACTED, toward the end of the year, and the Student made progress when the therapist helped the Student REDACTED. The therapist indicated that the Student was progressing gradually, but she ultimately did not reach the benchmarks, and she progressed when REDACTED with assistance. With respect to the Student's ability to REDACTED (goal 15), the therapist took REDACTED on whether the Student could REDACTED and, with hand over hand assistance, the Student was able to show progress. She was rated as progressing gradually, but she did not achieve any of the benchmarks (Transcript dated October 28, 2016 pp. 478-485, 487-488, 508, 51O; Exs. D-14, D-64, D-92).

REDACTED stated her opinion that REDACTED 4 times per week was an appropriate amount of service for the Student, because she needed a lot of repetition to learn a skill and sometimes she showed inconsistent progress, but she also demonstrated progress on some goals during the school year. She did not believe that an increase in REDACTED to 5 times a week would have helped her to achieve the goals. When asked whether a recommendation for REDACTED services 2 times per week for the REDACTED school year was appropriate, given her work with the Student, REDACTED stated that she could not give an opinion because she was not familiar with the facility providing the services. REDACTED stated that she was aware that the Student was receiving additional sessions of REDACTED at home during the REDACTED school year, and that she and the home provider were working on similar goals. The Student did not achieve any of her long-term REDACTED goals during the REDACTED school year (Transcript dated October 28, 2016 pp. 489-491, 523, 532,

539-542).

REDACTED reviewed the REDACTED sheets for the month of July 2016 for REDACTED services provided during the summer. The Student was able to REDACTED with 40% success and increased to 80% success. The Student was then measured on her ability to REDACTED and she completed that activity 40% of the time when tested on one day. She continued to work on REDACTED, which she was able to complete 60% to 80% of the time. When REDACTED she was able to complete the task 60% of the time when tested on one day. REDACTED stated that she continued to work on those activities with the Student for the rest of the summer 2016 session (Transcript dated October 28, 2016 pp. 495-497; Ex. D-106).

REDACTED is a REDACTED who holds New York State certification as a Teacher of the REDACTED and as a School District Administrator. She has been employed by the District since 2004. She was employed as a REDACTED for one of the District's REDACTED schools and in July 2015 she became the District's REDACTED/REDACTED Chairperson. She became familiar with the Student in or about September or October 2015 when an issue arose regarding implementation of REDACTED services for the Student in the home. In July 2015, the Student was recommended for one session of REDACTED as part of the home program.

Difficulties with scheduling the individual session led to a recommendation to change the home service to a consult. It was determined that an REDACTED consult would be added to the home program one lime per month to help the Student generalize skills across all settings (Transcript dated November 7, 2016 pp. 609-619; Exs. D-14, D-15 at p. 11).

At the annual review for the REDACTED school year, held on REDACTED the REDACTED discussed sending packets to 25 schools in an attempt to find an appropriate program for the Student. The Student was ultimately accepted into two programs, REDACTED and REDACTED. The Parent did not approve of REDACTED upon touring it and she believed that REDACTED was antiquated and that there were not enough procedures in place to prevent the Student from REDACTED. REDACTED and the Parent agreed to put a placement meeting on the calendar and REDACTED would be discussed at that time. The REDACTED also discussed summer services at the meeting and made a recommendation to provide services for the Student at the same placement she had for the REDACTED school year, the REDACTED (Transcript dated November 7, 2016 pp. 621-638; Exs. D-17, D-63).

Also at the annual review held on REDACTED, the REDACTED eliminated the REDACTED consult at home and added direct individual REDACTED therapy services two times per week each for 30 minutes per session as part of an after-school home program. REDACTED testified that services were added at home because her progress was slow. In an IEP dated April 20, 2016, the Parent signed an amendment to add uninterrupted REDACTED and REDACTED therapy services at home during school breaks to prevent substantial regression. At a REDACTED meeting held on June 15, 2016, the Parent expressed her desire for the Student to have mainstreaming opportunities. REDACTED personnel did not believe that mainstreaming was appropriate at that time due lo the Student's REDACTED. Socially, the Student engaged REDACTED and made no attempts to interact with peers. The Parent's request for a 1:1 aide to be present with the Student at the REDACTED program was discussed, and it was determined that she did not need the 1:1 aide because her REDACTED decreased and that sufficient staff was available in the REDACTED classroom to enable the Student to function in class. Goals were also reviewed and it was determined that the goals matched the Student's levels of functioning and the program. She then clarified that the goals were read and were not discussed at length unless someone had a. question about a particular goal (Transcript dated November 7, 2016 pp. 646-655, 687, 705-706; Exs. D-12, D-18, D-19, D-97, D-101, D-103).

REDACTED testified that the recommendation for placement of the Student in a REDACTED classroom was appropriate because, based upon her then-current levels of function she needed a small REDACTED which would give her opportunities for individualized instruction. REDACTED acknowledged that the recommendation for individual REDACTED services was reduced from 4 times per week to 2 times per week, but stated that the service providers are in the classroom every day to assist the staff in generalizing the skills the Student learned in the individual sessions to other environments. She also testified that REDACTED was added for the Student in the REDACTED program for her REDACTED in the new environment, to be sure the Student was REDACTED of her environment, as there were no REDACTED in the REDACTED program. In an IEP dated August 5, 2016, extended school day

. services were added in the form of REDACTED, REDACTED, and REDACTED services in the Student's home (Transcript dated November 7, 2016 pp. 670-677; Exs. D-100, D-101).

REDACTED testified that there was no one at the REDACTED meeting held on June 15, 2016 who knew the Student's abilities iii the area of REDACTED prior to making a recommendation for REDACTED. She also testified that REDACTED wanted to add REDACTED to the Student's IEP, and that neither REDACTED nor the District conducted a REDACTED evaluation prior to making a recommendation to add the service on the Student's IEP for the REDACTED school year. In addition, no updated REDACTED evaluation was conducted on the Student prior to making a recommendation to reduce the number of direct individual REDACTED sessions she had in half (Transcript dated November 7, 2016 pp. 695-697, 734-736; Ex. D-101).

REDACTED was recalled on the District's direct case to discuss services which she provided to the Student in summer 2016. She testified that she was told by her supervisor at REDACTED to select two goals to work on with the Student over the summer. She testified that the Student maintained goals 1 and 2 over the summer (Transcript dated December 16, 2016 pp. 765, 770-771, 777-778; Exs. 0-92, D-107).

REDACTED is a board certified and licensed REDACTED in New York State. She was supervised by a REDACTED during 1,500 hours of REDACTED, academic programs, taking REDACTED, implementing BIPs, and assisting with REDACTED for students with REDACTED. She described her work background, including her work as a teaching assistant and work as a REDACTED. She has worked at REDACTED as a REDACTED since November 2015. Her duties at REDACTED included REDACTED; training staff on how to REDACTED and REDACTED; and providing classrooms with REDACTED and additional strategies they may need for REDACTED in the classroom (Transcript dated December 16, 2016 pp. 812-821).

REDACTED testified that she worked with the Student in her classroom as her REDACTED starting in July 2016 through August 2016 with respect to her target behaviors that were identified in her BIP, including REDACTED. She took REDACTED and found that they were decreasing or being eliminated, having compared her REDACTED to the REDACTED which was taken as a baseline prior to the implementation of the BIP in 2014. However, she recommended that the BIP continue to be implemented for her transition into her new program for the REDACTED school year (Transcript dated December 16, 2016 pp. 821-825, 829; Ex. 0-107).

REDACTED is certified as an REDACTED Education Teacher as well as a certified School Building Leader and a School District Leader in New York State. She began her employment with the District in July 2000, and in 2010 she became the District's Executive Director of Special Education which, in 2013, was consolidated with her new duties as part of Student Support Services. She first became familiar with the Student in August 2014, when she transitioned from REDACTED to REDACTED. There was discussion at the meeting about the legality of providing special education services to the Student after school hours in addition to providing a REDACTED program. REDACTED testified that a representative from the REDACTED stated that the practice was not allowed, referring to it as a "dual program," but another member of the REDACTED disagreed, and there was a determination to contact the District's Regional Associate for input. The Regional Associate stated her belief that it was a dual program and not permitted, but determined to speak with her supervisor and with the New York State Education Department in Albany for further clarification. The final determination was that dual programming was not disallowed by Regulation, but that ii was best practice that an appropriate program would include 911 the supports and services the Student needs during the school day

(Transcript dated December 16, 2016 pp. 846-860; Ex. D-4).

The REDACTED reconvened on REDACTED and finalized its recommendation for the Student's placement, having received an acceptance letter from REDACTED. REDACTED reviewed the Student's needs as specified on the IEP to the goals which were created to address those needs. REDACTED testified that all the Student's academic, social, emotional, and management needs could be addressed within the recommended program with a small student-to-teacher ratio. The REDACTED reconvened on November 5, _2014 for a program review to review the Student's FBA and BIP which were developed due to the Student's REDACTED behaviors, and to add REDACTED services as part of a home program, even though the REDACTED and the State Education Department urged against it, as the Student was not generalizing skills between school and home. The FBA and BIP were developed after providing the Student with time to adjust to new routines and practices through the use of programmatic strategies and interventions. The REDACTED also added a REDACTED goal. The Student's IEP was amended again on November 21, 2014, to include generalization of skills to the community as well as from school to home (Transcript dated December 16, 2016 pp. 863-878; Exs. D-5, D-6, D-7).

The IEP was amended again on January 5, 2015, to remove the mandate of REDACTED at REDACTED. On February 13, 2015, the IEP was modified to change the location for all REDACTED services to occur in the therapy room and outside of the classroom. On March 24, 2015, the IEP was further modified to update REDACTED goals for the home instruction (Transcript dated December 16, 2016 pp. 878-879, 882-888; Exs. D-8, D-9, D-10).

The Student's annual review was held on April 24, 2015, which set forth summer services for 2015 and placement for the REDACTED school year. The REDACTED also met on May 27, 2015 for a program review. The Parent requested that packets be sent to other REDACTED because she did not feel that REDACTED was fully meeting the Student's needs. On July 13, 2015 the IEP was amended to add a monthly session of REDACTED at home to help the Student generalize her skills in that area (Transcript dated December 16, 2016 pp. 888-893; Exs. D-11, D-13).

REDACTED is a certified and licensed REDACTED who has been employed by REDACTED since August 2014, and she began working with the Student in December 2015. REDACTED testified regarding several reports which she drafted and testified that the Student's REDACTED reduced significantly and that the BIP that was in place for the Student was working. She also stated that, although there was an increase between March 2016 and May 2016, it was a very slight increase and did not change her opinion that the BIP continued to be appropriate. At the time she completed her work with the Student in June 2016, she stated that the Student's behaviors were being maintained at a very low level and that she was available to learn (Transcript dated February 27, 2017 pp.1157- 1184; Exs. D-65, D-73, D-77, D-80).

REDACTED, is a REDACTED at the ("REDACTED"). She is Board certified and licensed in the States of New York and Arizona. She described her experience working with individuals on the REDACTED and her supervisory experience. She also described her experience as a full-time lecturer at REDACTED and her employment as a Clinical Supervisor of in-home REDACTED programs for REDACTED. She also described her experience in developing FBAs and BIPs (Transcript dated February 27, 2017 pp. 1210-1221).

REDACTED is familiar with the Student as REDACTED provides in-home REDACTED programming to her, and she provides some supervision of the Student's services at home. She ensures that providers are correctly implementing programs; writes REDACTED as they are needed; and monitors the Student's progress to ensure that she is learning and that intervening behaviors are being reduced. She began her duties in the home in February 2017 (Transcript dated February 27, 2017 pp. 1221-1224).

REDACTED testified that the use of REDACTED by REDACTED with the Student in September 2014 are standard supports which schools typically use prior to taking REDACTED as part of the FBA process. She also reviewed REDACTED Behavior Referral Form and the REDACTED sheets and stated that she agreed with the determination not to begin the FBA REDACTED process until October 1, 2014. She stated that the FBA process consists of 3 steps.

First, there is an indirect assessment, which can either be through interview with the caregiver, the teacher, or both. The second step is direct observation of the behavior where there is collection of baseline REDACTED. The third step is REDACTED, which is the experimental manipulation of the environmental variables to determine the true cause of the behavior. She stated that the Functional Analysis Screening Tool (the "FAST") was part of the first step of the FBA process, and that it was used in conjunction with direct observation, i.e., the REDACTED collection process per New York State requirement. She also reviewed the FBA and BIP and stated that they fell in line with New York State regulations (Transcript dated February 27, 2017 pp. 1231, 1234-1238, 1244-1250; Exs.0-20, 0-22, 0-23, D-24).

REDACTED reviewed the IEP dated November 5, 2014 and stated that the timelines within which the FBA was conducted and reviewed by the REDACTED were appropriate. She also stated her opinion that the BIP in effect between October 2014 and May 2016 appears to have been effective as her behaviors reduced to near zero levels. REDACTED testified regarding her familiarity with the REDACTED Program and stated that based on her research of the program, it is evidence-based and conducted throughout the day, in line with what the research supports for effective REDACTED treatment, a minimum of 30 hours per week. She also testified that she did not believe that it was appropriate for the Student to be with typically developing peers because she REDACTED. She stated that her REDACTED deficits needed to be targeted before she is able to learn from her peers (Transcript dated February 27, 2017 pp. 1250-1257; Exs. 0-6, D-80).

REDACTED stated that she spent about an hour and forty minutes at the Student's home. She also stated that children with REDACTED benefit from positive role models, but that the Student's REDACTED deficits needed to be addressed, e.g., her struggles with REDACTED, so that she is gaining the most she can from her peers around her. She stated that she did not believe that the Student should "live in a bubble" but she did not believe it was "necessary" for the Student to be in a classroom with typically developing peers and that it was not detrimental for her not to be. She also testified that she works for REDACTED and that her employer contracts with the District as behavioral consultants. She stated that she met with the District's attorney to discuss some of the questions that would be discussed at the hearing and reviewed a list of questions over a period of about 2 hours (Transcript dated February 27, 2017 pp. 1257-1262, 1270-1274).

REDACTED was re-called to testify with respect to a REDACTED meeting held on November 9, 2016 (Transcript dated March 8, 2017 pp. 1314-1354).4

REDACTED was called on the Parent's direct case. She confirmed receipt of a letter dated September 11, 2014 from the Parent requesting REDACTED home services for the Student. She testified regarding the content of the e-mail transmissions between the parties, e.g., that she sought input from the REDACTED and the New York State Education Department with respect to whether the REDACTED could recommend a program which included a full-day center-based program and a home program after school, referred to as a "dual program." REDACTED confirmed that the REDACTED ultimately recommended a home program in addition to a center-based program insofar as there was no documentation forthcoming from either the New York State Education Department or the REDACTED that such a recommendation was prohibited by law or regulation, and the Student required it (Transcript dated December 16, 2016 pp. 909-911; Transcript dated March 8, 2017 pp.

1366-1372; Ex. P-B pp. 7-8).

REDACTED is the Student's Great Aunt. She testified regarding her professional background. She possesses a Bachelor's Degree in Education K-12, and a Masters in Special Education, K-12. She possesses New York State advanced certification as a School District Administrator. She has been employed by the REDACTED for 26 years, having worked as a classroom paraprofessional; an out-of-classroom paraprofessional with adaptive design access for students with multiple disabilities; a classroom teacher; an assistant principal; and principal of a. special education school which deals with an

REDACTED. REDACTED was asked questions relating to the November 9, 2016 meeting, to which the District objected. The witness was asked no further questions (Transcript dated March 8, 2017 pp. 1386-1404).

At the hearing held on March 8, 2017 before the first IHO, an Affidavit by REDACTED was marked for identification as Parent Exhibit C. The District's attorney asked for the Parent to produce REDACTED for testimony (Transcript dated March 8, 2017 at p. 1405). Following Remand, the Parent advised the second IHO that the agency by whom REDACTED was employed would not permit her to testify (Transcript dated December 6, 2017 at p. 1465). The Affidavit was admitted into evidence over the District's objection (Transcript dated December 6, 2017 at p. 1470).5

REDACTED is the Student's Parent. She testified that the REDACTED Chairperson, REDACTED, advised her that it would be impossible or illegal to provide the Student with extended school day services, which she termed a dual program. The Parent thereafter reached out to REDACTED and the Student was ultimately given extended day services. She stated that there was a delay of 7 months between the time she requested the services, in February 2014, and the time when the services were recommended by the REDACTED in November 2014. The Parent did not ask for compensatory education to make up for services which were not provided between March 2014 and November 2014 and she testified that she does not want it (Transcript dated December 6, 2017 pp. 1474-1480; Transcript dated October 18, 2019 pp. 2035, 2037-2039, 2043-2045, 2054; Exs. 0-6, 0-

7).

The Parent testified that she attended every meeting regarding the Student, and that she did not have the opportunity to meaningfully participate in every meeting.6 She stated that REDACTED told her that extended school day services were unheard of and impossible to give. She added that REDACTED told her that she never saw a student receive those services and that it would be impossible, that it was against the law because she called it a dual program, and that she had never seen it happen. The Parent also stated that she contacted the State Education Department's Regional Associate and the County on the issue of extended school day services and was told that the services could be provided in the District's discretion (Transcript dated December 6, 2017 pp.1484, 1499, 1509, 1522-1523; Transcript dated October 18, 2019 at p. 2158).

The Parent testified with respect to her belief that the Student needed higher levels of REDACTED, REDACTED, and REDACTED as a part of her special education services. With respect to the recommendations made at the transition meeting from REDACTED to REDACTED, when the Student transitioned from REDACTED to REDACTED, the Parent asked for REDACTED

6The Parent offered direct testimony regarding the alleged change of goals without her participation. Insofar as the second!HO permitted testimony on the issue, this!HO permitted cross-examination by the District for purposes of completion of the record. However, there is no allegation in either Due Process Complaint Notice which addresses the issue of meaningful participation by the Parent in the creation of goals or with respect to any other matter and, as such, I make no finding with respect to this issue (See Transcript dated December 6, 2017 pp. 1481-1505; Transcript dated October 18, 2019 pp. 2114-2141; Exs. IHO-5, D-1). therapies 5 times per week each. She also asked for REDACTED at higher levels than the REDACTED offered, and for a 1:1 teaching assistant as part of her program. She stated that an individual from the program advised her that REDACTED and REDACTED were given 4 times per week, and the fifth day was used for make-up services. She was also told that REDACTED were given two times per day for 30 minutes due to staffing issues. The Parent acknowledged that she accepted the placement at REDACTED nonetheless. When she asked for an additional REDACTED and REDACTED at home, she was denied the services. No one stated that they did not believe that the Student needed the additional services. She also testified that the Student received an extra 30-minute session of REDACTED per day in her second year at the REDACTED program. She further testified that the Student's REDACTED received more services when staff and time were available, even though additional services were not reflected on her IEP (Transcript dated December 6, 2017 pp. 1526- 1531; Transcript dated October 18, 2019 pp. 2148-2150).

The Parent testified that she asked for additional REDACTED services because the Student had no REDACTED; she REDACTED; she did not have REDACTED; and she was completely REDACTED and her REDACTED was high. She also requested additional REDACTED because the Student could not REDACTED; she had no type of REDACTED as far as any REDACTED; and she had an REDACTED. The Parent requested a 1:1 REDACTED as part of her program at REDACTED due to a high level of REDACTED. The Student had a 1:1 at REDACTED through REDACTED, where there was also a large number of staff in the classroom (Transcript dated December 6, 2017 pp. 1534- 1537; Transcript dated February 15, 2018 pp. 1657-1660).

The Parent stated that there came a time when she believed that REDACTED was not working for the Student, because she REDACTED, and the Parent requested an REDACTED evaluation at a REDACTED meeting. However, her REDACTED therapist at the time, REDACTED, stated that she did not believe it was the right time to conduct such an evaluation. The · evaluation was approved for the following summer (Transcript dated December 6, 2017 pp. 1545-1548).

The Parent testified that the IEPs in effect for the REDACTED and REDACTED school years, when the Student attended REDACTED, denied her a FAPE because of the failure to recommend an extended school day; the failure to provide REDACTED therapies 5 days per week, and the failure to provide a 1:1 for the Student during the school day program. In February 2016, the Student was given two additional sessions of REDACTED as part of an extended day program at home, for a total of REDACTED therapy sessions per week, more than the 5 sessions she originally requested. The Parent stated her opinion that the Student made little progress in her program at REDACTED through the use of REDACTED. She REDACTED, but she was able to REDACTED, which was recommended for her use in or about July 2015 (Transcript dated December 6, 2017 pp. 1551-1560; Transcript dated October 18, 2019 at p. 2016; Ex. D-18).

The Parent testified regarding REDACTED and REDACTED services which she obtained privately for the Student at home, prior to the beginning of her educational placement at REDACTED. She stated that in the summer 2015 REDACTED added REDACTED to the IEP as a consult at home, even though she was seeking direct services for the Student.

The Parent stated that during the Student's two years at REDACTED, she provided REDACTED services privately. She testified that in the first year, she provided approximately 45 sessions at $40 per half hour. She provided REDACTED for approximately 2 months during the Student's second year at REDACTED. She also testified that she paid out-of-pocket for approximately 15 REDACTED sessions at $70 per half hour session, starting in spring 2015 through the fall 2016, before she determined to bring her to a REDACTED. She paid a $1,500.00 deductible for the REDACTED. The remainder of the service was paid by insurance. She also testified that she paid for REDACTED services, provided by REDACTED, which were paid partially out-of-pocket and partially by insurance, until November 2014 when the District began to provide home services, and then she provided REDACTED out-of-pocket on the weekends for 10 hours per weekend. In later testimony, the Parent stated that the weekend therapy was covered by insurance. She has no records of the number of sessions of REDACTED and REDACTED actually provided privately by her (Transcript dated December 6, 2017 pp. 1560- 1571, 1602, 1784).

The Parent testified that the Student missed some of her related services due to absences and that there was a dispute between the Parent, the County, and the District as to whether those services had to be made up. She also stated her belief that REDACTED intentionally misled her about the availability of extended school day services and make-up services because the Parent knew of other Students in the District who received those services from the District. She also stated her belief that REDACTED was aware that extended school days services were permitted to be supplied by the District (Transcript dated December 6, 2017 pp. 1586-1594, 1596-

1599).

The Parent testified that she did not believe that the frequency of REDACTED given during the Student's attendance at REDACTED was appropriate in that her REDACTED were very poor; she could not REDACTED, REDACTED, or REDACTED. She also had many REDACTED issues, she needed REDACTED, and a REDACTED as her REDACTED was very overwhelming to her. She stated that she was providing services privately outside of school but not always steadily, including private REDACTED and attendance at REDACTED. She stated that she asked the REDACTED for REDACTED services for the Student 5 times per week, as well as for extended day services (Transcript dated February 15, 2018 pp. 1683-1685; Transcript dated October 18, 2019 pp. 2097-2098).

The Parent stated that she had conversations with the Student's home service providers who believed that the Student should not be placed in a segregated program for the REDACTED school year (Transcript dated December 6, 2017 pp. 1604-1607; Transcript dated October 18, 2019 pp. 2160-2161, 2167, 2174-2175). She testified that she was unaware whether any of the providers ever visited the REDACTED program and she was unaware as to whether REDACTED obtained any information from the District regarding the recommended REDACTED program or information regarding the functional levels of the other students in the proposed placement. She also stated that neither REDACTED nor the Student's other home providers observed the Student at REDACTED or at an REDACTED with typically developing peers (Transcript dated October 18, 2019 pp. 2170-2173, 2197- 2200, 2204-2206). The Parent testified regarding her disagreements with the REDACTED recommendations for the Student for the REDACTED school year, her REDACTED year. She disagreed with the REDACTED placement in that it was segregated and that the Student should have the opportunity to attend school in her home district with her peers, community, and friends. She discussed the activities in which the Student participated with typical peers outside of the school day, including but not limited to REDACTED programs. The Parent testified that she had decided against placing the Student in the REDACTED program prior to the time that it was recommended by the REDACTED (Transcript dated February 15, 2018 pp. 1696-1705; Transcript dated October 18, 2019 at p. 2108; Ex IHO-5).

The Parent testified that the Student did not attend the REDACTED program because she did not believe that it was an appropriate program. She stated that the Student stayed home from September 2016 through April 2017, at which time she attended a program in the REDACTED School District. She testified that as of September 2016, the Student's educational instruction was mostly facilitated by her, As of the beginning of the REDACTED school year, when the Student was kept home by the Parent, the District provided extended school days services which included REDACTED 2 hours per day for 5 days per week; REDACTED therapy 2 times per week for 30 minutes per session; and REDACTED 2 times per week for 30 minutes per session. The District also provided REDACTED in the home. The Student did not receive any services during the school day from the District from September 8, 2016 until November 2016. Had the Student attended the REDACTED program, in addition to the services she received as extended day services, she would also have received related services including REDACTED 5 times per week for 30 minutes, REDACTED 2 times per week for 30 minutes, and REDACTED 2 times per week for 30 minutes. In November 2016 the REDACTED recommended one hour of special education instruction per day, together with related services in the quantity she previously received as part of her REDACTED program 7 (Transcript dated February 15, 2018 pp. 1706-1707, 1710-1711, 1715- 1716, 1724-1726, 1728-1729, 1767-1768, 1794; Transcript dated October 18, 2019 pp.

2108-2114; Ex. 0-101).

7 The appropriateness of the REDACTED recommendations emanating from a meeting on November 9, 2016 was the subject of a separate Due Process Complaint Notice which will not be addressed as part of this Decision.

The Parent stated her disagreement with the REDACTED recommendations for the REDACTED school year as follows: She disagreed with the placement, as there were no non­ disabled peers; she disagreed with the level of REDACTED services, because they dropped down, e.g., REDACTED was reduced from 4 times per week at the REDACTED program to 2 times per week (the Parent sought REDACTED 5 times per week); she disagreed with REDACTED because at that point they never conducted a REDACTED evaluation, and the Parent did not believe that she needed the service, stating that "her REDACTED has always been her biggest strength, and they couldn't really validate why she needed the REDACTED, in my eyes... " as no one conducted a REDACTED evaluation. However, I note that in the Due Process Complaint Notice dated August 18, 2016 the Parent requests, at paragraph 3, a higher level of REDACTED than that which was recommended by the REDACTED for the REDACTED school year, and in the Proposed Solution in the Due Process Complaint Notice dated August 18, 2016 the Parent requests an increase in individual REDACTED to 5 times per week (Transcript dated February 15, 2018 pp. 1772-1774; Exs. IHO-5 pp. 3-4, D-101). None of the Student's home providers attended the REDACTED meeting at which the REDACTED program was recommended (Transcript dated October 18, 2019 pp. 2175-2176; Ex. D- 101).

The Parent testified that the failure of the Student to receive a full-day program during the day commencing in September 2016 resulted in a lot of regression REDACTED. She also stated that her REDACTED were also negatively impacted by staying home. She also engaged in REDACTED at home, such as REDACTED (Transcript dated February 15, 2018 pp. 1776-1778, 1782-1784, 1795-1797).

The Parent confirmed that she did not place the Student on the bus which was sent by the District to transport her to REDACTED in September 2016; that the Student did not receive educational services during the day from the District because she did not send her to the recommended REDACTED program; and that she received extended day services from the District comprised of REDACTED and 1:1 REDACTED services (Transcript dated October 18, 2019 pp. 2206-2209).

The parties entered into a Stipulation on the record with respect to make-up hours which the District offered to provide to the Student, contained in an IEP dated March 24, 2017 (Ex. IHO-16), as follows: The Committee discussed make-up hours for previously missed sessions. These make-up services will not expire until completed.

These make-up hours include 750 makeup hours of REDACTED instruction; 136 1:1 30- minute make-up sessions of REDACTED; 198 hours of make-up REDACTED services 1:1 in the home; and 140 1:1 30-minute sessions of make-up REDACTED. Make-ups are to be completed at home and can be done on weekdays up to 8:00 p.m., on weekends and school breaks, with the exception of federal holidays. The Parent indicated that this bank of hours has not yet begun to be provided by the District, as there are other hours that are owed which are not covered by this Complaint, and that the parties, by agreement, are using first. The Parent thereafter withdrew paragraphs 2, 3, 4, and 5 of the Proposed Solution portion of her Due Process Complaint (Transcript dated October 18, 2019 pp. 2057-2059, 2062-2070; Ex. D-1 at p. 19)

CONCLUSIONS OF LAW

The purpose behind the Individuals with Disabilities Education Act ("IDEA") is to ensure that children with disabilities have available to them a free appropriate public education ("FAPE") [20 U.S.C. Section 1400(d)(1)(A)]. A FAPE consists of special education and related services provided in conformity with a written IEP [20 U.S.C. Section 1401(9)], developed by a school district, which is designed to meet the student's unique needs. Implicit in the concept of FAPE is the requirement that the education must confer "some educational benefit" upon the student. Rowley v. Board of Education, 458 U.S. 176, 200-201 (1982). In Endrew F. v. Douglas Cty. Sch. Dist. RE- 1, 580 U.S._, 137 S.Ct. 988 (2017), the U.S. Supreme Court held that, "The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created" lliL, at 580 U.S._, 137 S.Ct. 988, 1001 (2017)].

A FAPE is offered to a student with a disability when (a) a board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its REDACTED through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits [Rowley v. Board of Education, 458 U.S. 176, 206-207 (1982)]. In evaluating the substantive program developed by the REDACTED, the Second Circuit has observed that "for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression. This progress, however, must be meaningful, i.e., more than mere trivial advancement [Weixel v. Bd. of Educ., 287 F.3d 138, 151 (2d Cir. 2002), quoting M.S. v. Bd. of Educ., 231 F.3d 96, 103 (2d Cir. 2000), cert. denied, 532 U.S. 942 (2001); Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119,130 (2d Cir. 1998)]. The IDEA does not require school districts to develop IEPs that maximize the potential of a student with a disability [Board of Education v. Rowley, 458 U.S. 176, 197, 199; Grim v.

Rhinebeck Central School District, 346 F.3d 377, 379 (2d Cir. 2003); Walczak v. Fla.

Union Free Sch. Dist., 142 F.3d 119, 132 (2d Cir. 1998)].

The appropriateness of an IEP must be evaluated prospectively as of the time of its drafting [R.E. v. New York City Dep't of Educ., 694 F.3d 167 (2d Cir. 2012)]. Parents who end up placing their children in public school cannot later use evidence that their child did not make progress under the IEP in order to show that it was deficient from the outset [R.E., 694 F.3d at p. 187, citing Carlisle Area School v. Scott P., 62 F.3d 520, 530 (3d Cir. 1995)]. In determining the adequacy of an IEP, both parties are limited to discussing the placement and services specified in the written plan and therefore reasonably known to the parties at the time of the placement decision [R.E., 694 F.3d at p. 187, citing Fuhrmann ex. rel. Fuhrmann v. E. Hanover Bd. Of Educ., 993 F.2d 1031,

1039-40 (3d Cir. 1993) ("Rowley requires at the time the initial evaluation is undertaken, an IEP need only be 'reasonably calculated to enable the child to receive educational benefits'... [T]he measure and adequacy of the IEP can only be determined as of the time it is offered to the student, not at some later date" (quoting Rowley. 458 U.S. at 206-07)].

To meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make appropriate progress in light of the child's circumstances [Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988, 999 (2017)]. The "reasonably calculated" qualification reflects a recognition that crafting an appropriate program of education requires a prospective judgment by school officials llil, at p. 999, citing Rowley. 458 U.S. at p. 207]. The Act contemplates that this fact­ intensive exercise will be informed not only by the expertise of school officials, but also by the input of the child's parents or guardians llil, at p. 999, citing Rowley, 458 U.S. at pp. 208-209]. Any review of an IEP must appreciate that the question is whether the IEP is reasonable, not whether the court regards it as ideal llil, at p. 999, citing Rowley, 458 U.S. at pp. 206-207].

When an IEP is modeled on a prior one, a student's progress under that prior IEP, although "not dispositive," is relevant to deciding whether the new IEP is "reasonably calculated to continue the trend" [C.S. v. Yorktown Cent. Sch. Dist., 2018 U.S. Dist. LEXIS 54742 (S.D.N.Y. 2018) citing S.H. ex.rel. W.H. v. Eastchester Union Free Sch. Dist., 2011 U.S. Dist. LEXIS 141091 (S.D.N.Y. 2011). There is no "bright-line rule" determining what constitutes "appropriate progress," but it cannot furnish "merely more than de minimis progress" and it must be tailored to the "unique circumstances of the child" [C.S., 2018 U.S. Dist. LEXIS 54742 at *62, citing Endrew F., 137 S.Ct. at p.

1001; see also H.C. ex. rel. M.C. v. Katonah-Lewisboro Union Free Sch. Dist., 528 F. App'x 64, 67 (2d Cir. 2013) (noting that "a child's academic progress must be viewed in light of the limitations imposed by the child's disability")]. A child's lack of progress under a particular IEP does not render the IEP inappropriate [C.B. ex. rel. W.B. v. New

York City Dep't of Educ., 2005 U.S. LEXIS 15215 (E.D.N.Y. 2005) citing Antonaccio v.

Board of Educ. of Arlington Cent. Sch. Dist., 281 F.Supp.2d 710, 724 (S.D.N.Y. 2003)].

The student's recommended program must also be provided in the LRE. In determining an appropriate placement in the LRE, the IDEA requires that children with disabilities be educated to the maximum extent appropriate with children who are not disabled and that special classes, separate schooling or other removal of children with disabilities from the regular educational environment may occur only when the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily [20 U.S.C. Section 1412(a)(5)(A); 34 C.F.R. Sections 300.114(a)(2)(i), 300.116(a)(2); 8 N.Y.C.R.R.

Sections 200.1(cc), 200.6(a)(1); see P. v. Newington Board of Education, 546 F.3d 111, 114; Gagliardo v. Arlington Central School District, 489 F.3d 105, 108 (2d Cir. 2007); Walczak, 142 F.3d 119,132; G.B. v. Tuxedo Union Free School District, 751 F.Supp.2d

552, 573-580 (S.D.N.Y. 2010) aff'd 486 Fed. App'x 954, 2012 WL 4946429 (2d Cir.

October 18, 2012); E.G. v. City School District of New Rochelle, 606 F.Supp.2d 384, 388 (S.D.N.Y. 2009); Patskin v. Board of Education, 583 F.Supp.2d 422,428 (W.D.N.Y. 2008)].

A board of education may be required to pay for educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim [Burlington Sch.

Comm. v. Dep't of Educ., 471 U.S. 359 (1985)].

While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA [Grim v. Rhinebeck

Central School District, 346 F.3d 377, 381 (2d Cir. 2003)]. If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a FAPE [J.D. v. Pawlet Central School District, 224 F.3d 60, 69 (2d Cir. 2000)]. A denial of a FAPE occurs when procedural inadequacies either result in a loss of educational opportunity for the student, or seriously infringe on the parents' opportunity to participate in the IEP formulation process (Werner v. Clarkstown Central School District, 363 F.Supp.2d 656,659 (S.D.N.Y. 2005); W.A. v. Pascarella, 153 F.Supp.2d 144,153 (D.

Conn. 2001); Briere v. Fair Haven Grade School District, 948 F.Supp. 1242, 1255 (D.Vt. 1966)], or compromise the development of an appropriate IEP in a way that deprives the student of educational benefits under that IEP (Arlington Central School District v.

D.K., 2002 U.S. Dist. LEXIS 21849, 2002 WL 31521158 (S.D.N.Y.2002); 20 U.S.C.

Section 1415(f)(3)(E)].

State regulations require that an IEP report the present levels of academic achievement and functional performance and indicate the individual needs of the student according to each of the four need areas of the student, including a description of how the student's disability affects progress in the general education curriculum (8 N.Y.C.R.R. Section 200.4(b)(5)(ii)(b); Section 200.4(d)(2)(i)(a)].

An IEP shall list measurable annual goals, consistent with the student's needs and abilities. The measurable annual goals, including benchmarks or short-term objectives, must relate to meeting the student's needs that result from his or her disability to enable the student to be involved in and progress in the general curriculum, and meeting each of the student's other educational needs that result from the student's disability (8 N.Y.C.R.R. Section 200.4(d)(2)(iii)(a)]. Each annual goal shall include evaluative criteria, evaluation procedures and schedules to be used to measure progress toward meeting the annual goal during the period beginning with placement and ending with the next scheduled review by the committee (8 N.Y.C.R.R. Section 200.4(d)(2)(iii)(b)]. The IEP shall identify when periodic reports on the progress the student is making toward the annual goals (such as through the use of quarterly or other periodic reports that are concurrent with the issuance of report cards) will be provided to the student's parents [8 N.Y.C.R.R. Section 200.4(d)(2)(iii)(c)].

For students eligible for 12-month services and/or program, the IEP shall indicate the identity of the provider of services during the months of July and August [8 N.Y.C.R.R. Section 200.4(d)(2)(x)]. Students shall be considered for 12-month special services and/or programs in accordance with their need to prevent substantial regression; if they are students whose management needs are determined to be highly intensive and require a high degree of individualized attention and intervention who are placed in special classes in a 6:1+1; if they are students with severe multiple disabilities, whose programs consist primarily of habilitation and treatment and are placed in special classes in a ratio of 12:1+3; if they are students who are recommended for home and hospital instruction whose special education needs are determined to be highly intensive and require a high degree of individualized attention and intervention or who have severe multiple disabilities and require primarily habilitation and treatment; students whose needs are so severe that they can only be met in a seven-day residential program; or if they are students who are not in any of the above described programs during the period from September through June and who, because of their disabilities, exhibit the need for a 12-month special service and/or program provided in a structured learning environment of up to 12 months duration in order to prevent substantial regression as determined by the REDACTED [8 N.Y.C.R.R. Section 200.6U)].

Substantial regression means a student's inability to maintain developmental levels due to a loss of skill or knowledge during the months of July and August of such severity as to require an inordinate period of review at the beginning of the school year to reestablish and maintain IEP goals and objectives mastered at the end of the previous school year [8 N.Y.C.R.R. Section 200.1(aaa)].

Federal Rules of Evidence Rule 702 provides that a witness who is qualified as an expert by knowledge, skill, experience, training or education may testify in the form of an opinion or otherwise if the expert's scientific, technical or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue, if the testimony is based on sufficient facts or REDACTED, the testimony is the result of reliable principles or methods, and the expert has reliably applied the principles and methods to the facts of the case [Fed. R. Evid. § 702]. Expert testimony is often critical in IDEA cases, which are fact-intensive inquiries about [a] child's disability and the effectiveness of the measures that school boards have offered to secure a free appropriate public education [Murphy v. Arlington Cent. Sch. Dist. Bd. Of Educ., 402 F3d 332, 338 (2d Cir. 2005) reversed and remanded 548 U.S. 291 (2006)].8

I shall address each of the issues which remain on Remand in seriatim.

8 The Second Circuit's decision was reversed by the United States Supreme Court on the issue of recovery by the parent for fees paid for expert witness testimony.

• • Whether the REDACTED determination to deny the Student home-based REDACTED services to supplement her day program at the REDACTED during the REDACTED and REDACTED school years was appropriate and, if not, whether the Student was denied a FAPE.

The issue of the provision of extended day services to supplement a Student's school day program has not yet been addressed by the Second Circuit. However, the First, Tenth, and Eleventh Circuit Courts of Appeal have held that the IDEA does not require the provision of extended day services for the purpose of generalizing skills across settings outside of the classroom [See Thompson R2-J Sch. Dist. v. Luke P., 540 F.3d 1143, 1150 (10th Cir. 2008); Gonzalez v. Puerto Rico Dep't of Educ., 254 F.3d 350, 353 (1st Cir. 2001); Devine v. Indian River County Sch. Bd., 249 F.3d 1289, 1293 (11th Cir. 2001)]. District Courts within the Second Circuit, however, have reached the same conclusion [F.L. v. New York City Dep't of Educ., 2016 U.S. Dist. LEXIS 75158, 2016 WL 3211969 (S.D.N.Y. 2016) (where extended day services were aimed at generalizing skills to environments other than school and where the student could still make academic progress without such services, the failure to recommend such services did not constitute a denial of FAPE); P.S. v. New York City Dep't of Educ., 2014 U.S. Dist. LEXIS 101666, 2014 WL 3673603 (S.D.N.Y. 2014) ("[T]he primary purpose of[the student's] home-based services appeared to be 'generalization' of behaviors learned in the school setting to the home setting... the evidence does not suggest that the student required home-based programming... in order to avoid regression, make progress during the in-school portion of his program, or to enable [the student] to receive educational benefits"); M.L. & B. v. New York City Dep't of Educ., 2014 U.S. Dist. LEXIS 45889; 2014 WL 1301957 (S.D.N.Y. 2014) (finding that a REDACTED failure to recommend home-based services did not deny the student a FAPE where the student would make progress without the home-based program, even if not at the same rate); C.G. v. New

York City Dep't of Educ., 752 F.Supp.2d 355, 358-359 (S.D.N.Y. 2010) (the Court identified the main issue in the case as "whether the IEP recommended by the REDACTED is 'likely to produce progress, not regression,' and thereby constitutes a FAPE, obviating the DOE's obligation to provide after-school services... and whether progress at the day program "could only be accomplished when coupled with the after-school services"); Student X. v. New York City Dep't of Educ., 2008 U.S. Dist. LEXIS 88163, 2008 WL 4890440 (E.D.N.Y. 2008) (finding that "[w]hile the evidence demonstrates that Student X made progress with the at-home REDACTED, it does not persuade the court [sic] that without it, Student X would regress or that his 'progress would be so trivial as to be almost non-measurable' as Plaintiff testified"); Application of a Student with a Disability v. Board of Educ. of Mount Vernon City School District, Appeal No. 18-146 at pp. 25-26; Application of a Student with a Disability v,. New York City Dep't of Educ., Appeal No.18-102 at pp. pp. 12-13; Application of a Student with a Disability v. New York City Dep't of Educ., Appeal No. 16-028 at pp. 32-33; Application of New York City Dept of Educ., Appeal No. 13-049 at pp. 26-27].

The evidence shows that the Parent requested an extended school day program at a REDACTED meeting held on August 11, 2014 (Ex. D-4 at p. 1). The IEP minutes do not set forth the reason for the Parent's request, and the REDACTED discussion focused on whether such a program (which it termed a "duel" [sic] program) could be legally recommended. In a letter dated September 11, 2014 to REDACTED, the Parents assert that the request for REDACTED therapy in the home after the school day was necessary because the Student was not able to transition or generalize any skills learned in school into the home (Ex. P-B pp. 6-8). The REDACTED ultimately determined to recommend an extended school day program since their contacts with the County and the State Education Department did not yield documentary evidence that such a program was prohibited by law (Transcript dated December 16, 2016 pp. 909-911; Ex. D-6 pp. 1-2, 10). On November 5, 2014, the REDACTED recommended the provision of a 1:1 REDACTED for 5 times per week, 2 hours per day, as part of an extended school day program, stating that "it will give [the Student] the opportunity to make greater progress towards her goals" (Ex. D-6 at p. 2). The REDACTED minutes also note that the Student "is unable to generalize skills from school to home" (Ex. D-6 at p. 2). The Student was not recommended for 12- month programming to prevent substantial regression at that time (Ex. D-6 p. 10).

At a REDACTED annual review meeting held on April 24, 2015, a 1:1 home-based REDACTED 5 times per week, 2 hours per day, continued to be recommended as part of an extended school day program for the REDACTED school year to give the Student "an opportunity to make greater progress towards her goals." The REDACTED noted that "although the Student is making progress towards her goals it has been slow progress." The REDACTED also found, however, that the Student regressed after breaks, and 12 month­ services were awarded for the summer 2015, which included a 1:1 REDACTED for 2 hours per day as part of an extended school day program (Ex. D-11 pp. 1-2, 11). In an IEP dated July 13, 2015, the REDACTED determined to add REDACTED as a direct service, one time per month for 30 minutes as part of the extended day home program "to help generalize skills being learned in school" (Ex. D-14 alp. 1). In an IEP dated October 2, 2015, the REDACTED added an REDACTED consult one time per month to support the home-based therapies "by providing home instructors with strategies and suggestions to optimize progress and access functional skills more readily" (Ex. D-15 at p. 1).

In two IEPs dated February 1, 2016 (one of which addressed 12-month services and the other of which addressed additional services as part of the REDACTED school year), the REDACTED found that "regression is demonstrated over long weekends.and breaks" and it recommended programming with related services for the summer 2016, for the Student to maintain skills she learned. The REDACTED also found that "services at home continue to be necessary for carry-over" and that "based on current functioning, REDACTED services in the home after school is warranted to maximize potential" and, in addition to continuing to recommend 1:1 REDACTED services at home as part of the Student's extended school day program, the REDACTED added individual home-based REDACTED 2 times per week for 30 minutes and individual home-based REDACTED 2 times per week for 30 minutes beginning February 16, 2016 (Exs. D-17 at pp. 1-2; D-18 pp. 1-2). In an IEP dated April 20, 2016, the REDACTED added uninterrupted REDACTED therapy services at home during school breaks to prevent substantial regression (Ex. D-12 at p. 1).

The evidence shows that from the time the REDACTED recommended an extended school day program on November 5, 2014 until February 1, 2016, the stated purposes were to provide the Student with an opportunity to make greater progress on her goals, to maximize her potential, and to promote generalization of skills from the school to the home and community. There was no finding by the REDACTED that the Student could not make educational progress in her day program in the absence of an extended day program; that the Student required an extended day program to receive educational benefits; or that the Student required an extended school day to avoid regression. As such, I find that extended school day services were not required, as a matter of law, to be provided to the Student in order to receive a FAPE during that period of time.

However, at the meeting held on February 1, 2016, the REDACTED found that the Student demonstrated regression over long weekends and breaks and recommended 12-month programming with extended school day services for the summer 2016. The REDACTED also added individual REDACTED 2 times per week for 30 minutes per session and individual REDACTED 2 times per week for 30 minutes per session to her already-existing extended school day program for the duration of the REDACTED school year. Moreover, at the April 20, 2016 REDACTED meeting, the REDACTED recommended uninterrupted REDACTED and REDACTED services at home during school breaks to prevent substantial regression. As such, I find that the District became obligated to provide extended day services to the Student as of February 1, 2016.

In sum, the Parent requested extended school day services in February 2014 and the Student was provided with 1:1 home-based REDACTED services 2 hours per day, five days a week, as part of an extended school day program, commencing on November 17, 2014, even though the REDACTED did not make specific findings that the Student required extended school day services in order to avoid regression; in order to make progress during the in-school portion of her program; or to enable her to receive educational benefits. As such, I find that extended school day services were not required to be provided to the Student, as a matter of law, from the time the Parent requested such services in February 2014 until its meeting on February 1, 2016.

However, at the time that the REDACTED made its finding of regression on February 1, 2016, it added REDACTED 2 times per week for 30 minutes and REDACTED 2 times per week for 30 minutes as part of the Student's already- existing extended school day program through the end of the REDACTED school year, as well as making recommendations for 12- month programming for the summer 2016. As such, I find that the Student was not denied a FAPE with respect to the provision of extended school day services for the REDACTED and REDACTED school years.

• • Whether the REDACTED determination to deny the Student the services of a 1:1 REDACTED to provide REDACTED services as part of her recommended day program at REDACTED for the REDACTED and REDACTED school years was appropriate and, if not, whether the Student was denied a FAPE.

REDACTED School Year The minutes from the REDACTED meeting held on August 27, 2014 indicate that there was discussion as to whether the Student required the services of a 1:1 aide as part of her recommended program at REDACTED (Ex. D-5 pp. 1-2). The Parent testified, however, that she requested a 1:1 REDACTED because at that time, the Student's REDACTED were very high; she had a high level of REDACTED; a high level of REDACTED; she had REDACTED; and she would REDACTED. She stated that the Student had a "1:1" in her REDACTED program at REDACTED in the prior school year (without specifying whether it was an aide or a REDACTED), even though there was a high level of adults in the classroom (Transcript dated December 6, 2017 pp. 1535- 1536). The REDACTED minutes reflect that the staff in the REDACTED program felt that given the level of support already in place within the classroom, an individual aide was not warranted, and the REDACTED school representative assured the REDACTED that they would closely monitor the Student's REDACTED (Ex. D-5 pp. 1-2).

The evidence shows that the Student attended a REDACTED class at REDACTED

(averaging.REDACTED adult for every REDACTED children) for the REDACTED and REDACTED school years. REDACTED testified that the length of the school day runs from 9:00 a.m. to 2:30 p.m., 5 days per week, utilizing the REDACTED curriculum, an REDACTED-based curriculum that incorporates REDACTED, REDACTED, and REDACTED throughout the day, to work on student goals. Every student has an individual schedule that incorporates their REDACTED, their therapies and their REDACTED. Snack is provided two times per day. There is lunchtime; playground time; and art time. REDACTED is used throughout the school day for 5.5 hours per day. As part of the school day, the Student received two individual 30-miriute sessions of REDACTED at REDACTED for the REDACTED school year. REDACTED was taken for every REDACTED. REDACTED was taken for REDACTED once per week and for REDACTED one time a week. REDACTED testified that REDACTED were embedded throughout the day in REDACTED training and in REDACTED. REDACTED confirmed that the REDACTED program consisted of REDACTED throughout the day, including through the use of REDACTED and REDACTED (Transcript dated August 8, 2016 pp. 165-166; Transcript dated September 16, 2016 pp. 29-44; Ex. D-94B).

REDACTED described the REDACTED, which was completed by the Student's teacher for the REDACTED school year, REDACTED, which shows the REDACTED which the Student already mastered (designated by an "X") and the REDACTED on which she was working (designated by an "O"), to determine which REDACTED to work on with the Student during the REDACTED school year. REDACTED was taken in each listed area three times per day to determine whether there was mastery. Once mastered, REDACTED was taken once a week to be sure the particular skills were maintained (Ex. D-94B).

The evidence shows that at a REDACTED meeting held on November 5, 2014, a recommendation was made for the Student to receive an extended day program, consisting of 1:1 REDACTED services for 2 hours per day, 5 days per week, to work on her goals (Ex. D-6 pp. 1-2). As of November 17, 2014, the Student received a total of37.5 hours of REDACTED instruction per week.

REDACTED, a REDACTED, testified that research suggests a minimum of 30 hours per week of REDACTED services for effective treatment, in order to make gains, without regard to the location of the services. The evidence shows that the Student received 5.5 hours of REDACTED throughout her school day at REDACTED, for a total of 27.5 hours per week. In addition, as of November 17, 2014, she received an additional 10 hours per week of 1:1 REDACTED services as part of her extended day program, for a total of 37.5 hours per week, well in excess of 30 hours per week recommended by the research as described by REDACTED (Transcript dated February 27, 2017 pp. 1256-1257; Ex. D-6 at p. 1). Although the REDACTED program fell short of the recommended hours of REDACTED service by 2.5 hours per week between September 3, 2014 and November 17, 2014 (a period of 10 weeks for a total of 25 hours), the shortfall in services was more than made up through the provision of the additional REDACTED hours that the Student received at home, beginning on November 17, 2014 and continuing through the end of the REDACTED school year.

I find that the REDACTED recommendation to deny the Student the services of a 1:1 aide due to the Student's REDACTED for the REDACTED school year was appropriate, given the small student-to-adult ratio in the classroom at REDACTED and the assurances provided by REDACTED at the REDACTED meeting to closely monitor the Student's REDACTED. To the extent that the Parent argues that a 1:1 REDACTED was necessary to provide REDACTED services to the Student for the REDACTED school year, in addition to the services she received both as part of the REDACTED program and as part of the extended school day, I find that the Student did not require such service in order to benefit from instruction and as such she received a FAPE for the REDACTED school year.

REDACTED School Year The evidence shows that the conduct of an FBA and implementation of a BIP by REDACTED during the REDACTED school year resulted in the reduction to very low levels of instances of REDACTED and, in some cases, elimination of target behaviors entirely, by the end of the REDACTED school year.

REDACTED, a REDACTED, testified that she met the Student in September 2014 and she reviewed a Behavior Referral Form (Ex. D-20) completed by her teacher for the REDACTED school year, REDACTED9, who sought additional REDACTED strategies for the Student due to her REDACTED, which occurred on a daily basis (Transcript dated August 12, 2016 pp. 305-317). REDACTED conducted an FBA (Transcript dated August 12, 2016 pp. 318-328, 330-333; Exs. D-22, D-23) and developed a BIP that specifically addressed each function and each behavior and included positive reinforcement (Transcript dated August 12, 2016 pp.

329, 333-339; Ex. D-24). The evidence shows that overall, compared to her baseline in October 2014, all of the Student's behaviors drastically decreased to very low levels

9 REDACTED was not presented for testimony by either party.

(Transcript dated August 12, 2016 pp. 341-344, 347-353, 356, 385-86; Exs. D-26, D-39, D-45, D-49, D-54, D-60, D-81).

The evidence also shows that the Student continued to receive two 1:1 sessions of REDACTED per day, 30 minutes per session, as well as REDACTED services through the REDACTED program throughout the school day at REDACTED for the REDACTED school year. She also continued to receive an extended day program which included 1:1 REDACTED services 2 hours per day, 5 days per week. Due to her slow progress, in February 2016, the Student's REDACTED at REDACTED were increased to three 1:1 sessions per day (Transcript · datedAugust8,2016pp.131-132, 166, 169,252-253; Ex. D-11 atp.1). As such, the Student continued to receive REDACTED services during the REDACTED school year for a total of

37.5 hours per week, well in excess of 30 hours per week recommended by the research.

The conduct of an FBA and the implementation of a BIP were effective in decreasing the Student's REDACTED to very low levels and in some cases, eliminated behaviors in their entirety, as of the conclusion of the REDACTED school year. I find that the REDACTED determination to deny Student the services of a 1:1 aide for the purpose of controlling the Student's behaviors for the REDACTED school year was appropriate. To the extent that the Parent argues that a 1:1 REDACTED was required to provide REDACTED services to the Student for the REDACTED school year, in addition to the REDACTED services she received both as part of the REDACTED program and as part of the extended school day, I find that the Student did not require such service in order to benefit from instruction and as such she received a FAPE for the REDACTED school year.

• • Whether the REDACTED recommendation with respect to the provision of REDACTED as part of the REDACTED program during the REDACTED and REDACTED school years was appropriate and, if not, whether the Student was denied a FAPE.

REDACTED School Year

At a REDACTED meeting held on August 11, 2014 for the REDACTED school year, the Student was recommended to receive individual REDACTED 5 times per week for 30 minutes as part of her program at REDACTED (Ex. 0-4). Upon the Parent's determination to reject placement at REDACTED, the REDACTED reconvened and recommended placement at REDACTED. However, the recommendation for individual REDACTED was reduced to 4 times per week for 30 minutes for the REDACTED school year (Ex. 0-5). The Parent testified that REDACTED staff told her that they offered related services four days per week, and that the fifth day was reserved for make-up sessions (Transcript dated December 6, 2017 pp. 1554-1555). She also testified that she requested an increase in individual REDACTED to 5 sessions per week because the Student had no REDACTED; she REDACTED; she did not have a REDACTED; and she was REDACTED (Transcript dated December 6, 2017 at p. 1534). She thereafter requested that, since the Student was going to receive only 4 sessions of REDACTED during the school day, whether she could receive an additional session as part of an extended school day program which, at the time of her request, was not recommended by the REDACTED (Transcript dated December 6, 2017 pp. 1553-1554).

The IEP dated August 27, 2014, identified the Student's needs in the area of REDACTED. II stated that the Student needed to strengthen her REDACTED skills. REDACTED, she needed to improve upon her ability to REDACTED. REDACTED, she needed to develop REDACTED. REDACTED, she needed to strengthen her REDACTED (Ex. 0-5 at p. 4).

The evidence shows that the REDACTED had the results of a REDACTED Evaluation dated May 12, 2014 by the REDACTED therapist who worked with the Student at her placement at REDACTED School in the previous school year (Ex. D-28). A review of the evaluation in conjunction with the IEP reveals that the IEP accurately reflects the results contained in the evaluation (compare Ex. D-5 with Ex. D-28). Moreover, the goals and benchmarks contained in the IEP addressed the identified areas of need, including REDACTED; use of REDACTED; use of REDACTED (e.g., REDACTED); and using correct REDACTED (e.g., REDACTED) (Ex. D-5 pp. 4, 6-7).

REDACTED testified that she did not believe that services 4 days per week, instead of 5 days per week, affected the Student, since skills worked on in REDACTED were carried over into the classroom on a daily basis by herself and her assistants. Moreover, REDACTED and her assistants had communication with the REDACTED therapist every day. Moreover, the Student's program was REDACTED and, according to REDACTED, she was "REDACTED all day long"

(Transcript dated August 8, 2016 pp. 161-162; Transcript dated September 23, 2016 pp.

290,296).

I find that the REDACTED recommendation to provide individual REDACTED 4 times per week for 30 minutes for the REDACTED school year, an increase in service by 2 days per week over what she received through REDACTED at REDACTED School (compare Ex. D-5 at p. 1 with Ex. D-28 at p. 1), was reasonably calculated to enable the Student to make progress appropriate in light of her circumstances and provided her with a FAPE. II is understandable that the Parent sought the additional day of service, given the Student's severe disability. However, the law requires an appropriate level of service, not a level of service that provides everything that might be thought desirable by loving parents [Walczak v. Florida Union Free Sch. Dist,142 F.3d 119, 132 (2d Cir. 1998).

REDACTED School Year

REDACTED testified that at the time she began to work with the Student in September 2014, she demonstrated delayed REDACTED. REDACTED, she made some REDACTED, but she had no

REDACTED. REDACTED, she exhibited REDACTED. REDACTED, she had REDACTED (Transcript dated September 23, 2016 pp. 202-211; Ex. D-4 at p. 5). A review of the Student's progress report from November 4, 2014 shows that she improved in her ability to REDACTED; she REDACTED independently or with minimal cueing; she REDACTED; when presented with REDACTED, she was able to REDACTED; she was able to REDACTED with up to 90% accuracy independently or with minimal cues; and she began to REDACTED with cueing. She was not, however, consistently REDACTED from session to session (Transcript dated September 23, 2016 pp. 216-218; Ex. D-35).

REDACTED also reviewed the Annual Review REDACTED Progress Report dated January 23, 2015 in conjunction with the IEP dated May 27, 2015 for the REDACTED school year, and confirmed that the results of her testing appeared on the IEP, and that the IEP reflected her report that the Student made significant progress in her ability to REDACTED; that she demonstrated the ability to REDACTED; that she REDACTED with up to 80% accuracy, given gestural cues; that she made progress with REDACTED visual and tactile clues and repetition; that she was beginning to REDACTED with moderate cues with 60% accuracy; that she was beginning to demonstrate REDACTED; and that she demonstrated REDACTED. However, the Student was still not REDACTED within therapy sessions (Transcript dated September 23, 2016 pp. 222-224, 307-308; Exs. D-13, D-38).

As of March 30, 2015, the Student was inconsistently able to REDACTED with up to 70% accuracy. She began to REDACTED given visual, verbal, and tactile cueing. She continued to demonstrate REDACTED, but she was still not yet REDACTED within therapy sessions (Ex. D-44).

As of May 2015, the Student's needs included improvement in her ability to REDACTED. The Student was evaluated for, and ultimately received REDACTED in an IEP dated June 5, 2015 for the REDACTED school year, and goals were added to REDACTED. The Student also had two REDACTED goals together with goals involving use of a REDACTED and REDACTED (Transcript dated September 23, 2016 pp. 225-229; Exs. D-13 pp. 7-8, D-17 at p. 2, D- 99).

As of June 10, 2015, the Student began to REDACTED given visual, verbal, and tactile cueing. Although she continued to demonstrate frequent use of REDACTED, she was not yet consistently REDACTED within therapy sessions (Ex. D-51).

The Student's Progress Report on Goals and Objectives in the area of REDACTED dated June 2015 indicates that Student was progressing gradually on goals 1, 2, and 3, and was also progressing gradually on the benchmarks, meaning that she was making less than anticipated progress but might still achieve the goal. She was progressing satisfactorily on goal 4, meaning that she was making satisfactory progress and was expected to achieve the goal, having achieved the benchmark of REDACTED. The Student did not achieve any of her REDACTED goals by the end of the REDACTED school year (Ex. D-87 pp. 3-5).

A review of the IEP for the REDACTED shows that the Student's needs in REDACTED, as identified by REDACTED during the REDACTED school year through both testing and progress reports, are accurately contained in the document, and that the goals developed for the REDACTED school year were designed to address each of her stated needs (Transcript dated September 23, 2016 pp. 220-229; Exs. D-13, D-38). REDACTED testified that the recommendation to continue REDACTED services at 4 times per week was appropriate, as the entire program at REDACTED is REDACTED. Moreover, the Student was absent on some days during the REDACTED school year, and when services were made up on the fifth day of the week, she never saw in her REDACTED or observations any significant improvement on the weeks she was seen 5 times per week (Transcript dated September 23, 2016 pp. 234, 290,294).

REDACTED testified that she did not believe that services 4 days per week, instead of 5 days per week, affected the Student, since skills worked on in REDACTED were carried over into the classroom on a daily basis by herself and her assistants. Moreover, REDACTED and her assistants had communication.with the REDACTED therapist every day (Transcript dated August 8, 2016 pp. 161-162).

In sum, the evidence shows that the REDACTED considered information from a variety of sources in determining the Student's ongoing needs and it considered her progress (albeit slow) during the REDACTED school year in formulating its recommendation for REDACTED 4 times per week during the REDACTED school year. A school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances. The District provided an IEP that was reasonable; it was not required to provide an IEP that was ideal. I find that the REDACTED recommendation for REDACTED 4 times per week as part of her IEP for the REDACTED school year provided the Student with a FAPE.

• • Whether the REDACTED recommendation with respect to the provision of REDACTED as part of the REDACTED program during the REDACTED and REDACTED school years was appropriate and, if not, whether the Student was denied a FAPE.

REDACTED School Year

At a REDACTED meeting held on August 27, 2014 for the REDACTED school year, the Student was recommended to receive individual REDACTED for a total of 4 sessions per week for 30 minutes as part of her program at REDACTED (Ex. D-5 at p. 1). The Student attended a full-time program at REDACTED School for the 2013/14 school year. The REDACTED had in its possession a 6 Month Progress Report from the REDACTED School dated February 1, 2014, which discharged the Student from REDACTED due to transition to a full-time program under the auspices of the REDACTED (Transcript dated February 15, 2018 at p.

1661; Ex. D-98 at p. 1). The report indicated that the Student was able to REDACTED. Her REDACTED was improving. She briefly explored REDACTED. She REDACTED; enjoyed REDACTED; allowed the provider to REDACTED; she REDACTED; and she enjoyed REDACTED. REDACTED was persistent and interfered with REDACTED (Ex. D-98 at p. 1).

The evaluator also conducted formal assessments of the Student's then­ current functioning in her REDACTED skills (Ex. D-98 pp. 1-2). The Student was able to REDACTED. She was not yet able to REDACTED (Ex. D-98 at p. 2).

The therapeutic plan set forth long term goals of improvement of REDACTED; improving REDACTED; and improvement of REDACTED. Short term objectives included REDACTED 80% of the time; REDACTED independently 80% of the time; REDACTED independently 80% of the time; placing REDACTED 75% of the time; REDACTED 80% of the time; and to REDACTED 50% of the time. The report also contained suggestions for the family/caregiver, and noted that the family was presently and actively involved in the Student's therapeutic plan (Ex. D-98 at p. 2).

The evidence shows that the Student's test results emanating from the evaluation are reflected in the recommended IEP (Ex. D-5 at p. 4). The IEP also reflects the Student's REDACTED as identified in the evaluation (Ex. D-5 at p. 5), and contains goals and objectives designed to meet her needs (Ex. D-5 pp. 8-9).

REDACTED testified that at the August 27, 2014 REDACTED meeting, she reviewed the Students needs as specified on the IEP in relation to the goals which were created to address those needs. She further testified that the Student's academic, social, emotional, and management needs could each be addressed within the recommended program with a REDACTED (Transcript dated December 16, 2016 pp. 863-870). She identified which goals specifically addressed the Student's REDACTED issues (Transcript dated December 16, 2016 at p. 869).

The Parent testified that she requested an increase in REDACTED services to 5 times per week because the Student could not REDACTED; she had no type of REDACTED; and she had an intense need for REDACTED (Transcript dated December 6, 2017 at p. 1534).

The evidence shows that the REDACTED recommendations for the Student for REDACTED addressed each of the need areas identified by both the Parent and the prior REDACTED therapist (compare Ex. D-5 with Ex. D-98). During the 2013/14 school year, the Student received REDACTED 2 times per week for 45 minutes per session (Ex. D-98 at p. 1). For the REDACTED school year, the REDACTED recommended an increase in REDACTED services to 4 times per week for 30 minutes per session, an additional 30 minutes per week (Ex. D-5 at p. 1).

REDACTED testified that she did not believe that services 4 days per week, instead of 5 days per week, affected the Student, since skills worked on in REDACTED were carried over into the classroom on a daily basis by herself and her assistants. Moreover, REDACTED and her assistants had communication with the REDACTED therapist every day (Transcript dated August 8, 2016 pp. 161-162).

I find that the REDACTED recommendation to provide individual REDACTED 4 times per week for 30 minutes for the REDACTED school year was reasonably calculated to enable the Student to make progress appropriate in light of her circumstances and provided her with a FAPE. It is understandable that the Parent sought the additional day of service, given the Student's severe disability. However, the law requires an appropriate level of service, not a level of service that provides everything that might be thought desirable by loving parents [Walczak v. Florida Union Free Sch. Dist.,142 F.3d 119, 132 (2d Cir. 1998).

REDACTED School Year

A review of the Student's REDACTED progress report dated November 5, 2014 reveals that the Student REDACTED without any difficulty; that she required REDACTED; she required REDACTED; she continued to require cues to REDACTED; that during REDACTED tasks, she tended to REDACTED; that she demonstrated an emerging REDACTED; that she was able to REDACTED; that she was REDACTED; and that her REDACTED affected her ability to REDACTED (Ex. D-36).

The Student's REDACTED progress report dated January 28, 2015 includes both reports by her therapist relative to her progress during therapy sessions as well as results of standardized testing. The report indicated that the Student demonstrated small gains toward all of her REDACTED goals as of that time in the REDACTED school year (Ex. D-40 at p. 1). Although the Student performed in the REDACTED on standardized subtests, the therapist noted that REDACTED. The REDACTED therapist also noted regression in the Student's ability to REDACTED over the winter break (Ex. D-40 pp. 2-4).

In a progress report dated March 27, 2015, it states that the Student continued to be inconsistent with her ability to REDACTED; she required REDACTED; she was able to REDACTED; she demonstrated improvement with respect to REDACTED; she continued to demonstrate an REDACTED; she often REDACTED; she was able to REDACTED; she demonstrated the ability to REDACTED but could be inconsistent due to her REDACTED; she continued to have difficulty REDACTED; she required assistance to REDACTED and she was unable to REDACTED; however, she was able to REDACTED (Ex. D-43).

A review of the Student's quarterly progress report dated May 28, 2015 reveals continued difficulty REDACTED which affected her consistency with her goals across sessions; she was able to REDACTED; she was able to REDACTED; she demonstrated progress with REDACTED, although at times she attempted to REDACTED but could be redirected with verbal prompts; she continued to REDACTED, but switched between REDACTED (e.g., she demonstrated REDACTED); she continued to be able to REDACTED but at times required prompts REDACTED; she was inconsistent with her REDACTED; she was unable to REDACTED; she was inconsistent with her ability to REDACTED; she demonstrated the ability to REDACTED independently, but at times required REDACTED (Ex. D-48).

Programmatically, the location for all of the Student's REDACTED sessions was changed to be provided in the therapy room due to her inability to tolerate therapy in the classroom setting as of March 9, 2015 (Ex. D-9 pp. 1-2). The Student was also provided with 12-month programming which included individual REDACTED 4 times per week for 30 minutes (Ex. D-11 at p. 1). As of July 13, 2015, the REDACTED added an additional session of REDACTED at home over the summer 2015, as well as for the REDACTED school year,10 once per month for 30 minutes to help generalize skills being learned in school (Ex. D-14 at p. 1).·

A review of the Student's Progress Report for Goals and Objectives for the REDACTED school year shows that she progressed gradually to the goal of REDACTED, meaning that she

10 The REDACTED awarded the Student an extended school day program in a meeting held on November 5, 2014 (Ex. D-6 at p. 1). was making less than anticipated progress but may still achieve the goal; she did not achieve any of the benchmarks related to the goal (Ex. D-87 at p. 9). She progressed satisfactorily in her ability to REDACTED, meaning that she was making satisfactory progress and was expected to achieve the goal. She achieved the benchmark of REDACTED (Ex. D- 87 at p. 9). She also progressed satisfactorily in completing 2 tasks requiring the ability to REDACTED and achieved the benchmark of REDACTED (Ex. D-87 at p. 10). In addition, she progressed satisfactorily in REDACTED, although she did not achieve the benchmarks (Ex. D- 87 pp. 10-11).

A comparison of the Student's standardized test scores on subtests of the REDACTED administered on February 1, 2014 and on January 12, 2015 shows that her standard scores on the REDACTED decreased.11

REDACTED testified that she did not believe that services 4 days per week, instead of 5 days per week, affected the Student, since skills worked on in REDACTED were carried over into the classroom on a daily basis by herself and her assistants. Moreover, REDACTED and her assistants had communication with the REDACTED therapist every day (Transcript dated August 8, 2016 pp. 161-162).

A review of the IEP for the REDACTED school year as recommended by the REDACTED at the annual review held on April 24, 2015 confirms that REDACTED continued to be an issue (Ex. Dc11 at p. 2). The minutes do not reflect the presence of an REDACTED therapist at the meeting however the Student's REDACTED were discussed (Ex. D-11 at p. 2). The most recent REDACTED progress report is referenced in the IEP, and information contained in the REDACTED section with respect to the Student's needs accurately reflects the information contained in the Student's progress reports (Exs. D-11 at p. 3, 0-36, D-40, 0-43). Although REDACTED rendered an opinion that REDACTED services 4 times per week was an appropriate recommendation for the REDACTED school year, she testified that she did not meet the Student until September 2015, that she had not attended any of the Student's REDACTED or REDACTED meetings, and that her opinion with respect to the appropriateness of that level of service was based on her work with the Student during the REDACTED school year. Insofar as REDACTED testimony is retrospective in nature, pursuant to R.E., supra, I accord her opinion in that regard no weight (Transcript dated October 28, 2016 pp. 444, 489-491, 520-522).

In sum, the evidence shows that the REDACTED considered information from a number of sources in determining the Student's ongoing needs in the area of REDACTED as of the end of the REDACTED school year, and it considered her progress during the REDACTED school year in formulating its recommendation for the REDACTED school year. A school must offer an IEP reasonably calculated to enable the child to make progress appropriate in light of the child's circumstances. The REDACTED determined to recommend 4 individual sessions of REDACTED per week for the REDACTED school year. The District provided a level of services which was reasonable at the time the recommendation was made; it was not required to provide a level of services that was optimal. As stated earlier, it is understandable that the Parent sought the additional day of service, given the Student's severe disability. However, the law requires an appropriate level of service, not a level of service that provides everything that might be thought desirable by loving parents [Walczak v. Florida Union Free Sch. Dist.,142 F.3d 119, 132 (2d Cir. 1998).

I find that the REDACTED recommendation with respect to REDACTED for the REDACTED school year was appropriate and provided the Student with a FAPE.

• • Whether the REDACTED recommendation with respect to the provision of summer services for 6 weeks in duration, rather than recommending a summer program in excess of 6 weeks in duration, was appropriate and, if not, whether the Student was denied a FAPE.

Pursuant to Federal Regulation, each pubic agency must ensure that extended school year services are available as necessary to provide FAPE. Extended school year services must be provided only if the child's IEP Team determines, on an individual basis, that the services are necessary for the provision of FAPE to the child (34 C.F.R.

§§ 300.106(a)(1) and 300.106(a)(2)]. A public agency may not limit extended year services to particular categories of disability or unilaterally limit the type, amount, or duration of those services (34 C.F.R. 300.106(a)(3)]. Also pursuant to Federal Regulation, the term "extended school year services" means special education and related services that are provided to a child with a disability beyond the. normal school year of the public agency; in accordance with the child's IEP; at no cost to the parents of the child; and meet the standards of the SEA (34 C.F.R. §§ 300.106(b)(1) and 300.106(b)(2)].

New York State Regulation defines" twelve-month special service and or program as "a special education service and/or program provided on a year-round basis, for students determined to be eligible in accordance with sections 200.6(k)(1) and 200.16(i)(3)(v) of this Part whose disabilities require a structured learning environment of up to 12 months duration to prevent substantial regression. A special service and/or program shall operate for at least 30 school days during the months of July and August, inclusive of legal holidays, except that a program consisting solely of related service(s) shall be provided with the frequency and duration specified in the student's individualized education program [ 8 N.Y.C.R.R. § 200.1(eee)]. State Regulations further defines the term "school day" during the months of July and August as "every day except Saturday, Sunday and legal holidays [8 N.Y.C.R.R. § 200.1(n)(1)]. The term "twelve-month special service and/or program" and "extended school year "ESY" have the same meaning. See Questions and Answers on Individualized Education Program

0EP) Development, The State's Model IEP Form and Related Documents, 12-Month

Programs/Services Update April 2011, Question 5, available at www.p12.nysed.gov/specialed/formsnotices/IEP/training/answers-12month.him.

Summer 2015 The evidence shows that the Student was recommended for summer services for the summer 2015 at a REDACTED meeting held on April 24, 2015 (Ex. D-11 at p. 1). The services were to consist of REDACTED in a classroom setting 5 hours per day, 5 days per week, together with individual REDACTED 4 times per week for 30 minutes per session in the therapy room and individual REDACTED 4 times per week for 30 minutes in the therapy room. The summer program also included an extended school day home program consisting of 1:1 REDACTED services for 2 hours per day, 5 days per week and REDACTED 1 time per month at the school and 2 times per month for 1 hour per session in the home/community. The summer services were recommended to start on July 6, 2015 and end on August 14, 2015, to prevent substantial regression. The REDACTED found that the Student required a special education program to be provided for an extended school year, during the months of July and August, in order to prevent substantial regression (Ex. D-11 pp. 1, 11-12). The REDACTED minutes document that the Parent participated actively in the meeting and agreed with the projected goals and recommendations (Ex. D-11 at p. 2).

Through an Amendment - No Meeting dated July 13, 2015 the REDACTED added individual REDACTED one time per month for 30 minutes as part of the extended summer school day services program pursuant to a signed amendment from the Parent (Ex. D- 14 at p. 1). It is clear from the hearing record that the REDACTED recommendations for summer services between July 6, 2015 and August 14, 2015, which included an extended school day program, offered a 12-month program reasonably calculated to enable the Student to avoid substantial regression appropriate in light of her particular circumstances. The recommended duration of school day and extended school day services complies with Federal and State Regulations. I find that the Student was provided with a FAPE with respect to programming for the summer 2015.

Summer 2016 The evidence shows that the Student was recommended for summer services for the summer 2016 at a REDACTED meeting held on February 1, 2016 (Ex. D-17 at p. 1). The services were to consist of a REDACTED in a classroom setting for 5 hours per day, 5 days per week, together with individual REDACTED 4 times per week for 30 minutes per session and individual REDACTED 4 times per week for 30 minutes per session in the therapy room, and included an extended school day home program consisting of 1:1 REDACTED services for 2 hours per day, 5 days per week, individual REDACTED 2 times per month for 30 minutes per session, individual REDACTED 2 times per week for 30 minutes, and individual REDACTED 2 times per month for 1 hour per session in the home/community12. The summer school day services were recommended to start on July 4, 2016 and end on August 12, 2016, to prevent substantial regression. The extended summer school day services were recommended to start on July 4, 2016 and end on August 31, 2016. The REDACTED found that the Student required a special education program to be provided for an extended school year, during the months of July and August, in order to prevent substantial regression (Exs. 0-17 pp. 1-2, 9-10, Ex. 0-18 pp. 1-2, 13).

The IEP minutes state that the Student demonstrated regression over long weekends and breaks and, as a result, a summer program was recommended with related services in order to maintain skills learned. It is also stated that services at home continued to be necessary for carry-over, and that based on current functioning, REDACTED services in the home after school was warranted to maximize potential; that services and goals were reviewed; and that the Parent was in agreement. The minutes document that the Parent participated actively in the meeting and agreed with the projected goals and recommendations (Exs. 0-17 at p. 2, 0-18 at p. 2).

A review of the Student's Progress Reports for the summer school day program for summer 2015 indicates that she maintained developmental levels with respect to her target behaviors to very low levels compared with her baseline behaviors, and REDACTED

12 Through an Amendment - No Meeting dated January 15, 2015, the REDACTED received a signed amendment from the Parent to remove REDACTED at REDACTED per her request (Ex. D-8 at p. 1). was eliminated entirely (0-54). With respect to REDACTED, the Student maintained her ability to REDACTED and also maintained her ability to REDACTED (Ex. 0-55). In the area of REDACTED, the Student was able to maintain her ability to REDACTED, and was then recently transitioned from a REDACTED to REDACTED (Ex. 0-56).

A review of the Student's Progress Reports for the extended summer school day program for summer 2015 in the area of REDACTED shows that she was able to maintain developmental levels on the benchmark of REDACTED (Ex. 0-88 at p. 2). She also maintained developmental levels on a benchmark relating to REDACTED (Ex. 0-88 at p. 3). In the area of REDACTED, the Student was able to maintain developmental levels on the benchmark involving REDACTED. She was also able to maintain developmental levels on the benchmark involving REDACTED (Ex. 0-88 pp. 4-5).

The evidence shows that the REDACTED increased the services which the Student received over the summer 2016 to include, as part of her extended school day program, REDACTED and REDACTED in the home, services which she did not receive in the summer 2015 (compare Ex. 0-11 with Exs. 0-17, 0-18). It is clear from the hearing record that the REDACTED recommendations for summer services between July 4, 2016 and August 12, 2016 (for the summer school day program), and between July 4, 2016 and August 31, 2016 (for the extended summer school day program), offered a 12-month program reasonably calculated to enable the Student to avoid substantial regression appropriate in light of her particular circumstances, and the recommended duration of summer school day and summer extended school day services complies with Federal and State Regulations. I find that the Student was provided with a FAPE with respect to programming for the summer 2016.

• • Whether the REDACTED recommendation for placement of the Student in the REDACTED program for the REDACTED school year constituted the LRE and, if not, whether the Student was denied a FAPE.

The Parent asserts that the REDACTED recommended placement for the Student in the REDACTED program does not constitute the LRE, as the program does not offer access to non-disabled peers (Ex. IHO-5 at p. 3). At a REDACTED meeting held on February 1, 2016 for the REDACTED school year, the comments reflect that the Student's REDACTED (Ex. D-18 at p. 2). The Social Development portion of the IEP indicates that, due to significant REDACTED deficits, the Student had difficulty REDACTED (Ex. D-18 at p. 5). At a REDACTED meeting held on June 15, 2016, the Parent requested a placement that provided opportunities for interaction with typical peers (Transcript dated November 7, 2016 at p. 650; Ex. D-101 at p. 1). The IEP reflects the Student's social needs as follows: REDACTED (Ex. D-101 at p. 5).

REDACTED testified regarding the substance of the discussions at the June 15, 2016 REDACTED meeting with respect to the issue of mainstreaming. She stated that a REDACTED special education teacher who participated in the meeting, REDACTED, stated that based on the Student's functioning level in REDACTED she believed that the Student needed to work on REDACTED before mainstreaming would be an appropriate recommendation. Specifically, the Student needed to work on REDACTED. REDACTED did not testify at the Impartial Hearing (Transcript dated November 7, 2016 pp. 650-653; Ex. D-101 at p. 1).

REDACTED, the Clinical Supervisor of the Student's home program, was presented by the District as an expert witness in the area of REDACTED. The Parent conceded that she was an expert. REDACTED testified that she did not believe that it was appropriate for the Student to be with typically developing peers because she did not REDACTED (Transcript dated February 27, 2017 pp.1101, 1216, 1221, 1257, 1265). She also stated that children with REDACTED benefit from positive role models, but that the Student's REDACTED deficits needed to be addressed first, which she identified as the Student's struggles with REDACTED so that she could gain the most she could from her peers around her (Transcript dated February 27, 2017 pp. 1258, 1270-1274). REDACTED confirmed that she spent about an hour and forty minutes at the Student's home with the Student (Transcript dated February 27, 2017 pp. 1257-1258).

Although REDACTED testified that she spent only 1 hour and 40 minutes with the Student in the home prior to her testimony (Transcript dated February 27, 2017 pp. 1257-1258), I find that her testimony is credible and is entitled to significant weight. There is no requirement that a prospective expert witness must have seen the child who is the subject of a hearing. The testimony of an expert witness is admissible so long as the factual basis for the expert's conclusions or opinions can be found in the evidence in the record, personal observation by the expert, or a combination of both [Bethpage

Water District v. Hendrickson Bros.• Inc., 138 A.D.2d 660, 661 (2d Dept. 1988); Application of a Child with a Disability v. Bd. Of Educ. of the City Sch. Dist. of Utica,

Appeal No. 93-004]. REDACTED testimony was uncontroverted [See Evans v. Board of Educ., 930 F.Supp. 83, 101 (S.D.N.Y. 1996)]..

In sum, I find that the REDACTED recommendation to place the Student in the REDACTED program for the REDACTED school year constituted the Student's LRE, and the recommendation provided the Student with a FAPE.

• • Whether the Student required REDACTED services for 2.5 hours per day, 5 days per week, in addition to the recommended program at REDACTED for the REDACTED in order to receive a FAPE and if so, whether the Student was denied a FAPE.

With respect to the REDACTED program, REDACTED testified that the program ran from 9:00 a.m. to 3:00 p.m., and that it was a 5-1/2 hour day. Each student has an individual schedule for specials and related services. The REDACTED program uses the REDACTED teaching methodology throughout the entire school day in its REDACTED program. Every opportunity is used as a teachable moment from REDACTED. Throughout the day students are encouraged to be REDACTED (Transcript dated September 16, 2016 pp. 65-66).

Depending on the schedule for the day and related services, students might receive four or five REDACTED per day, lasting 30 minutes each, a total of between 2 and 2.5 hours per day as part of the program. REDACTED is taken daily during REDACTED. Depending on the needs of the student, there is academic REDACTED, REDACTED, and REDACTED. In addition, the Student would have received individual REDACTED services in the home 5 times per week, for 2 hours per day as part of her extended school day program (Transcript dated September 16, 2016 pp. 69-70; Ex. 0-101).

REDACTED testified that research suggests a minimum of 30 hours per week of REDACTED services for effective treatment, in order to make gains, without regard to the location of the services. The evidence shows that the Student would have received 5.5 hours of REDACTED throughout her school day at REDACTED, for a total of27.5 hours per week. Of that time, between 2 and 2.5 hours per day was individualized REDACTED, for a total of between 1O and 12.5 hours per week. In addition, she would have received 10 hours per week of 1:1 REDACTED per week as part of her extended day program, for a total well in excess of 30 hours per week (Transcript dated February 27, 2017 pp. 1256-1257; Ex. D-100 at p.1).

I find that the level of REDACTED services recommended by the REDACTED for the Student for the REDACTED school year as part of the REDACTED program, together with the additional 10 hours per week of 1:1 REDACTED therapy which she would have received as part of her extended school day home services program, was appropriate and would have provided the Student with a FAPE. The REDACTED determination not to provide an additional 2.5 hours per day of REDACTED services as requested by the Parent did not deny the Student a FAPE.

• • Whether the REDACTED recommendation with respect to the provision of REDACTED as part of the REDACTED program was appropriate and, if not, whether the Student was denied a FAPE.

REDACTED testified that in addition to individual REDACTED sessions, REDACTED and REDACTED is incorporated into the program and is addressed throughout the school day REDACTED, through the use of REDACTED and other means appropriate for each student. Students are REDACTED, and REDACTED and in REDACTED. Students also participate in music, where they REDACTED and follow along with a tune (Transcript dated September 16, 2016 at p. 66-69, 72, 74- 75). REDACTED testified that the related service providers are in the REDACTED classroom every day working with the staff, demonstrating the skills that are being worked on in the individualized sessions in an effort to generalize those skills (Transcript dated November 7, 2016 at pp. 671-672).

The IEP for the REDACTED school year provided for individual REDACTED 4 times per week for 30 minutes in the therapy room, together with an additional session in the classroom, for a total of 5 sessions per week. In addition, the Student would have received individual REDACTED 2 times per week for 30 minutes in her home, as part of an extended school day (Exs. D-100 at p. 1, D-101 at p. 1). The amount of services recommended by the REDACTED for the REDACTED school year exceeded the number of sessions recommended for the Student for the REDACTED school year (Compare Exs. D-9 at p. 1 and D-11 at p.1 with D-100 at p. 1).

I find that the REDACTED recommended an appropriate level of individual REDACTED and, together with the full-day REDACTED-based REDACTED program, provided the Student with a FAPE for the REDACTED school year.

• • Whether the REDACTED recommendation with respect to the provision of REDACTED as part of the REDACTED program was appropriate and, if not, whether the Student was denied a FAPE.

REDACTED testified that in the REDACTED program REDACTED are worked on in art through activities such as REDACTED. Students utilize a variety of materials and have different REDACTED, such as pasting, gluing, using clay, feathers, and small and large brushes. Students also participate in music and gym (Transcript dated September 16, 2016 at p. 71).

REDACTED testified that the related service providers are in the REDACTED classroom every day working with the staff, demonstrating the skills that are being worked on in the individualized sessions in an effort to generalize those skills (Transcript dated November 7, 2016 at pp. 671-672).

For the REDACTED school year, the Student received individual REDACTED services 4 times per week at REDACTED (Ex. D-11 at p. 1). In an Amendment - No Meeting dated July 13, 2015, the REDACTED added an additional session 1 time per month as part of her extended day program to generalize skills (Ex. D-14 at p. 1). On October 15, 2015, the REDACTED added an REDACTED consult one lime per month to support home-based therapies through providing strategies and suggestions to optimize progress and access functional skills more readily (Ex. D-15 at p. 1). On February 1, 2016, REDACTED services were increased to provide individual REDACTED 2 times per week for 30 minutes as part of the extended school day for the remainder of the REDACTED school year (Ex. D-18 at p. 1). Also on February 1, 2016, the REDACTED recommended summer services for 2016 which included the provision of REDACTED 4 times per week in the therapy room and two times a month as part of the extended school day to prevent substantial regression, as regression was demonstrated over long weekends and breaks (Ex. D-17 pp. 1-2).

In an IEP dated June 15, 2016 for the REDACTED school year, the REDACTED initially recommended the provision of individual REDACTED services as part of the REDACTED program 2 limes per week for 30 minutes in the therapy room (Ex. D-101 at p. 1). On August 5, 2016, the IEP was amended by agreement to add individual REDACTED 2 times per week for 30 minutes as part of her extended school day home program (Ex. D-100 at p. 1). There is no explanation in the hearing record for the recommendation to decrease individual REDACTED services from that which she received as of February 1, 2016 for the REDACTED school year.

There is no rationale as to what changed from the time the REDACTED recommended an increase to 6 individual sessions per week of REDACTED on February 1, 2016 for the REDACTED school year, to the time the REDACTED made its recommendation for a reduction in REDACTED to 4 individual sessions per week on August 5, 2016 for the REDACTED school year. note that the decrease in REDACTED services by two sessions enabled the Student's schedule to accommodate two individual sessions of REDACTED as part of her program at REDACTED (discussed infra). There also was no updated REDACTED evaluation conducted to support such a change.

An Annual Review Progress Report submitted by REDACTED on January 4, 2016 indicates that the Student continued "to display slow gains towards her REDACTED goals, requiring moderate to maximum assistance to complete REDACTED... she continues to require assistance REDACTED... she is unable to REDACTED (Ex. D-64 at p. 2). Her Progress Report indicates that by the end of the REDACTED school year, the Student only achieved one benchmark relating to REDACTED. She did not achieve any other benchmarks and she did not achieve any of her goals in REDACTED (Ex. D-92 pp. 15-17). I note that the REDACTED recommended REDACTED services over the summer 4 times per week in the therapy room and one time per month as part of the extended day program for the purpose of maintaining developmental levels and preventing substantial regression (Ex. D-18 at p. 1).

I find that the REDACTED recommendation to reduce the Student's individual REDACTED for the REDACTED school year is not supported by the hearing record, and that the reduction denied the Student a FAPE.

Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case. Wenger v. Canastota, 979 F.Supp. 147 (N.D.N.Y. 1997). Compensatory education relief may be awarded to a student with a disability who remains eligible for instruction under the IDEA [See 20 U.S.C. §§ 1401(3), 1412(a)(1)(B); Educ. Law§§ 3202(1), 4401(1), 4402(5)]. Within the Second Circuit, compensatory education relief in the form of supplemental special education or related services has been awarded to such students if there has been a denial of FAPE [P. v.

Newington Board of Education, 546 F.3d 111, 123 (2d Cir. 2008)] [stating that "[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and... compensatory education is a available option under the Act to make up for denial of a [FAPE]"; Likewise, SROs have awarded compensatory "additional services" to students who remain eligible to attend school and have been denied appropriate services, if such deprivation of instruction could be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation

[Board of Education v. Munoz, 16 A.D.3d 1142 [4th Dept. 2005] [finding it proper for an SRO to order a school district to provide "make-up services" to a student upon the school district's failure to provide those educational services to the student during home instruction].

The purpose of an award of compensatory educational services or additional services is to provide an appropriate remedy for a denial of FAPE [See Doe v. E. Lyme

Board of Education, 790 F.3d 440, 456 (2d Cir. 2015); see also Reid v. District of Columbia, 401 F.3d 516, 524 [D.C. Cir. 2005] [holding that, in fashioning an appropriate compensatory education remedy, "the inquiry must be fact-specific, and to accomplish IDEA's purposes, the ultimate award must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place"]. Accordingly, an award of additional services should aim to place the student in the position he or she would have been in had the district complied with its obligations under the IDEA [See Newington, 546 F.3d at 123 (holding that compensatory education awards should be designed so as to "appropriately address the problems with the IEP"); S.A. v. New York City Dept. of Educ., 2014 U.S. Dist. LEXIS 42649, 2014 WL 1311761, at *7 (E.D.N.Y. March 30, 2014) (noting that compensatory education "serves to compensate a student who was actually educated under an inadequate IEP and to catch-up the student to where he [or she] should have been absent the denial of a FAPE")l.

The Parent calculated the make-up hours she believed the Student to be entitled to, and the District and the Parent entered into a Stipulation to provide the make-up services which were quantitatively identified by the Parent (See Transcript dated October 18, 2019 pp. 2057-2059, 2062-2070). I find that the make-up hours agreed upon between the parties with respect to REDACTED services places the Student in the position she would have been in had the District complied with its obligations under the IDEA. The agreed upon make-up hours are tailored to meet her unique circumstances. Insofar as the Student has a large bank of compensatory education hours, including but not limited to 750 make-up hours of 1:1 REDACTED services and 198 hours of 1:1 REDACTED services in the home, in the exercise of my discretion, I decline to Order any additional compensatory education services resulting from my finding of the denial of FAPE with respect to the reduction of recommended individual REDACTED services for Student for the REDACTED school year.13

• • Whether the REDACTED recommendation with respect to the provision of REDACTED as part of the REDACTED program was appropriate and, if not, whether the Student was denied a FAPE.

REDACTED described the Student's REDACTED as "always pretty much at each level," and "age appropriate." She testified that the Student was able to REDACTED (Transcript dated August 8, 2016 pp. 138-139).

REDACTED testified that REDACTED was added for the Student in the REDACTED program for REDACTED, to be sure that the Student was REDACTED. She also testified that there was no one at the REDACTED meeting held on June 15, 2016 who knew the Student's abilities in the area of REDACTED prior to making the recommendation. She stated that REDACTED wanted to add REDACTED to the IEP, and that neither the REDACTED nor the District conducted a REDACTED evaluation prior to making the recommendation for the service for the REDACTED school year (Transcript dated November 7, 2016 pp. 674-675, 695-696, 734-736; Ex. D-100 at p. 1).

The Parent testified that she disagreed with the REDACTED recommendation for REDACTED because no evaluation was conducted, and she did not believe that the Student needed the service, stating "her REDACTED has always been her biggest strength, and they couldn't really validate why she needed the REDACTED, in my eyes" (Transcript dated February 15, 2018 pp. 1773-1774). Paradoxically, the Parent requested an increase in the level of REDACTED that was recommended for the REDACTED school year from 2 times per week to 5 times per week as part of her Due Process Complaint Notice (Exs. IHO-5 pp. 3-4, D-101 at p. 1).

The Social History taken from the Parent on May 21, 2014 lists the Student's REDACTED abilities as follows: REDACTED (Ex. D-30 at p. 2).

The IEP dated August 27, 2014 for the REDACTED school year describes the Student's REDACTED abilities as "appear[ing] to be within age expectations (Ex. D-5 at p. 5). The IEPs dated February 1, 2016 for the REDACTED school year and August 5, 2016 for the REDACTED school year describe her REDACTED abilities as one of her strengths (Exs. D-17 at p. 6, D-100 at p. 5). The IEP for the REDACTED school year lists her REDACTED as follows: REDACTED (Ex. D-100 at p. 5).

Under Federal and State regulation, a school district is responsible to conduct a "full and individual initial evaluation" before the initial provision of special education and related services to a student with a disability" [See 34 C.F.R. § 300.301(a); 8 N.Y.C.R.R. § 200.6(b)(1). Under Federal regulation, an evaluation must assess the student "in all areas related to the suspected disability, including, if appropriate, health, vision, hearing, social and emotional status, general intelligence, academic performance, communicative status, and motor abilities" [34 C.F.R. § 300.304(c)(4)]. Under State regulation, an initial evaluation must include at least a physical examination, a psychological evaluation, a social history, a classroom observation of the student and any other "appropriate assessments or evaluations,: as necessary to determine factors contributing to the student's disability" [8 N.Y.C.R.R. § 200.4(b)(1)].

Pursuant to Federal and State regulation, an evaluation of a student must be sufficiently comprehensive to identify all of the student's special education and related services needs, whether or not commonly linked to the disability category in which the student has been classified [34 C.F.R. § 300.304(c)(6); 8 N.Y.C.R.R. § 200.4(b)(6)(ix); see also Application of a Student with a Disability. Appeal No. 19-101; Application of the Board of Education of the Williamsville Central School District, Appeal No. 18-001;

Letter to Baus, 65 IDELR 81 (OSEP February 23, 2015)].

REDACTED testified that in music, students incorporate REDACTED (Transcript dated September 16, 2016 at p. 73).

I find that the REDACTED was required to arrange for the conduct of a REDACTED evaluation prior to making a recommendation for REDACTED as a related service. The recommendation for REDACTED does not jibe with the description of the Student's REDACTED on her IEPs, nor does it jibe with her REDACTED as described by the Parent.

Although the REDACTED failure to arrange for a REDACTED evaluation constitutes a procedural violation, I find that such violation did not result in a loss of educational opportunity for the Student, seriously infringe on the Parents' opportunity to participate in the IEP formulation process, or compromise the development of an appropriate IEP in a way that deprived the Student of educational benefits under that IEP and as such, did not violate the Student's right to FAPE. By all accounts, the information available to the REDACTED showed that the Student's REDACTED were an area of strength, and not an area of need.14

• • Whether the Student required the services of a 1:1 teaching assistant as part of her placement in the REDACTED program for the REDACTED school year and, if so, whether the REDACTED failure to recommend a 1:1 teaching assistant for the Student constituted a denial of FAPE.

REDACTED testified that the Parent's request for a 1:115 to be present with the Student at the REDACTED program was discussed, and it was determined that she did not need one because her REDACTED decreased, and sufficient staff was available in the REDACTED classroom to enable the Student to function in class (Transcript dated November 7, 2016 pp. 651- 653). The evidence shows that the Student would have been placed in a REDACTED with a student-lo-adult ratio of REDACTED, averaging REDACTED students to REDACTED adult. The evidence also shows that the Student's REDACTED were nearly eliminated by the end of the REDACTED school year through the use of her BIP, and that the REDACTED recommended continuation of the Student's BIP at the REDACTED program. REDACTED also testified that socially, the Student REDACTED during the REDACTED school year (Transcript dated August 8, 2016 pp. 160-161; Transcript dated August 12, 2016 pp. 341-344, 347-353, 356, 385-386; Exs. 0-39, 0-

45, 0-49, 0-54, 0-100 at p. 6). Moreover, as fully set forth in 117, supra, the Student did not require the services of a 1:1 teaching assistant in the REDACTED classroom to provide additional REDACTED in order for her to receive educational benefit (See Decision and Order pp. 96-98).

I find that the Student did not require the services of a 1:1 teaching assistant or a 1:1 aide as part of her recommended placement at REDACTED and the REDACTED decision not to recommend a 1:1 did not violate the Student's right to a FAPE.

ORDER

Based upon the above, it is hereby

ORDERED, that the Parent's application for a finding that the REDACTED determination to deny the Student home-based REDACTED services to supplement her day at REDACTED during the REDACTED and REDACTED school years denied the Student a FAPE is hereby denied; and it is further

ORDERED, that the Parent's application for a finding that the REDACTED determination to deny the Student the services of a 1:1 REDACTED to provide REDACTED services as part of her recommended day program at REDACTED denied the Student a FAPE for the REDACTED and REDACTED school years is hereby denied; and it is further

ORDERED, that the Parent's application for a finding that the REDACTED recommendations with respect to the provision of REDACTED as part of her program at REDACTED for the REDACTED and REDACTED school years denied the Student a FAPE is hereby denied; and it is further

ORDERED, that the Parent's application for a finding that the REDACTED recommendations with respect to the provision of REDACTED as part of the Student's program at REDACTED for the REDACTED and REDACTED school years denied the Student a FAPE is hereby denied; and it is further

ORDERED, that the Parent's application for a finding that the REDACTED recommendations with respect to the provision of summer services for 6 weeks in duration, rather than recommending summer programs in excess of 6 weeks in duration, for the summer 2015 and summer 2016 denied the Student a FAPE is hereby denied; and it is further

ORDERED, that the Parent's application for a finding that the REDACTED program recommended for the REDACTED school year did not constitute the Student's LRE and denied her a FAPE is hereby denied; and it is further

ORDERED, that the Parent's application for a finding that the Student required REDACTED services for 2.5 hours per day, 5 days per week, in addition to her recommended program at REDACTED and the extended day program for the REDACTED school year, and that the REDACTED failure to make such a recommendation denied the Student a FAPE, is hereby denied; and it is further

ORDERED, that the Parent's application for a finding that the REDACTED recommendation with respect to the provision of REDACTED as part of the REDACTED program denied the Student a FAPE is hereby denied; and it is further

ORDERED, that the Parent's application for a finding that the REDACTED recommendation with respect to REDACTED as part of the REDACTED program denied the Student a FAPE is hereby granted; and it is further

ORDERED, that the Parent's application for a finding that the REDACTED recommendation with respect to the provision of REDACTED as part of the REDACTED program was not appropriate is hereby granted; and it is further

ORDERED, that the Parent's application for a finding that the REDACTED recommendation for the provision of REDACTED as part of the REDACTED program violated the Student's right to a FAPE is hereby denied; and it is further

ORDERED, that the Parent's application for a finding that the Student required the services of a 1:1 teaching assistant as part of her placement at REDACTED for the REDACTED school year in order to provide her with a FAPE is hereby denied; and it is further

ORDERED, that the Parent's application for an award of compensatory education to remedy the denial of FAPE is hereby denied for the reasons set forth in this Decision and Order.

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the Parent and/or the REDACTED District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.

An appealing party's request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.

DATED: February 4, 2020

New City, New York

4 Insofar as an IEP dated November 9, 2016 was the subject of a separate Impartial Hearing, none of REDACTED testimony in that regard has been considered by this!HO as part of this Decision and Order.

5 Pursuant to 8 N.Y.C.R.R. § 200.5U)(3)(xii)(f), an \HO may take direct testimony by affidavit in lieu of in­ hearing testimony, provided that the witness giving such testimony shall be made available for cross­ examination. See J.S. and R.S. v. New York City Dep't, of Educ., 2017 U.S. Dist. LEXIS 26328 (S.D.N.Y. 2017). Insofar as REDACTED was not made available for cross-examination, I give Parent's Exhibit C no weight (Transcript dated March 8, 2017 pp. 1360-1363, 1405-1407; Transcript dated December 6, 2017pp. 1464-1473, 1602-1605; Transcript dated October 18, 2019 pp. 2164-2165). I also note that the Parent testified that she had input in creating the document signed by REDACTED (Transcript dated December 6, 2017 at p. 1602), although she denied having input on cross-examination (Transcript dated October 18, 2019 pp. 2202-2204)..

11 Although the hearing record contains analyses of the Student's performance on the subtests of the REDACTED administered on February 1, 2014 and January 12, 2015, there is no evidence in the record which compares her performance on the two administrations, or whether the decline in standard scores was statistically significant (Exs. D-40, D-98).

13 The bank of make-up hours to which the parties agreed will not commence until the Student completes a previously agreed upon amount of additional make-up services that are currently in progress (Transcript dated October 18, 2019 at p. 2062).

14 I note that in the concurrent proceeding, the Parent stated on the record that she no longer sought the conduct of a REDACTED evaluation as part of the Proposed Solution in that case, nor does it appear as a Proposed Solution under either of the Parent's Due Process Complaint Notices that comprise this hearing (Exs. D-1, IH0-5).

15The IEP dated June 5, 2016 referred to the 1:1 as a TA; REDACTED testified that the discussion at the meeting was in reference to a 1:1 aide.

Wendy K. Brandenburg, Esq. Impartial Hearing Officer

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Footnotes

[4] 1973, and the No Child Left Behind Act of 2001, and is reasonably calculated to enable the Student to receive a FAPE (Ex. D-2 at p. 9); and the District has and continues to offer the Student a FAPE (Ex. D-2 at p. 9).

[11] REDACTED, who was certified as a coach (Transcript of August 8, 2016 pp. 102-104, 174- 178).